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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:. Settlement agreements as beginnings & ends

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SUCCESSFUL SETTLEMENTS : BUILDING RELATIONSHIPS & MANAGING EXPECTATIONS

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  1. SUCCESSFUL SETTLEMENTS :BUILDING RELATIONSHIPS & MANAGING EXPECTATIONS R. David Donoghue Holland & Knight LLP 131 S. Dearborn Street, 30th Floor Chicago, Illinois 60603-5517

  2. 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

  3. SETTLEMENTS AS END POINTS • No continuing obligations • Lump sum payments • No monitoring requirements

  4. SETTLEMENTS AS END POINTS: • Arbitration clauses • Liquidated damages • Press releases/non-disclosure clauses

  5. PRESS RELEASES/NON-DISCLOSURE CLAUSES: • Do not leave to the last minute • Corporate clients: Clear through all channels • Manage disclosures

  6. 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

  7. SETTLEMENT AGREEMENTS AS BEGINNINGS: • Know your goals: • Upfront cash • Revenue stream • Being free of future litigation • Ongoing relationship/joint venture

  8. SETTLEMENT AGREEMENTS AS BEGINNINGS: • Draft to all parties’ goals • Use precedent thoughtfully • Engage licensing/corporate attorneys

  9. 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

  10. 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?

  11. DRAFT ROBUST LASTING CLAUSES • Confidentiality/non-disclosure • Know your limits • Set limits your Client & opponent can meet • Sales people • Serial licensors • Public reporting

  12. DRAFT ROBUST LASTING CLAUSES • Press releases • Draft & approve early • Approve language & timing

  13. DRAFT ROBUST LASTING CLAUSES • Avoid legalese • Use precedent carefully

  14. DRAFT ROBUST LASTING CLAUSES • Periodically have a colleague review • Spend the time & money to normalize

  15. ENGAGE THE EXPERTS • Tax • Importing • Intellectual property • International law • Licensing

  16. GET CLIENT BUY IN • Settlements is not an insular process • Involve: • Business Executives • Accounting • Public Relations • Tax

  17. 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

  18. QUESTIONS R. David Donoghue Holland & Knight LLP 131 S. Dearborn Street, 30th Floor Chicago, Illinois 60603-5517

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