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

2 KEYS TO DRAFTING EFFECTIVE & ENFORCEABLE AGREEMENTS: Settlement agreements as beginnings & ends Understand your needs & your opponents 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 opponents 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 clients 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 opponents 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