Legal Commentary

Unintended Consequences

Posted on May 26, 2010
Decision makers must be aware that their policies often have unintended consequences. Executive Compensation One example of unintended consequences is associated with the requirements for senior executives of publicly-traded companies to disclose their compensation...

Negotiating Points from Crisis and Command

Posted on May 23, 2010
I recently read Crisis and Command by John Yoo. I found the book to be a very informative and readable historic account of the ebbs and flows of presidential power. A few of the historical accounts provide lessons for negotiators....

Delegitimizing Bullying Tactics in Negotiations

Posted on May 23, 2010
There are a host of measures one can take to neutralize bullying behavior on the part of an opponent in negotiations. One of these measures is to delegitimize the basis on which the bullying behavior is based. If you can...

Importance of Physical Stamina in Negotiations

Posted on May 19, 2010
Prolonged negotiations result in physical, mental and psychological strain. Those in better physical shape have an advantage of those who are in poor physical shape. As World War II was coming to a close, it was Joseph Stalin who had...

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Negotiating Prices of Medical Devices

Posted on May 18, 2010
In most cases, doctors decide which medical devices are necessary for their patients. Since the hospitals pay for the devices, the doctors have had little incentive to hunt for reduced prices. However, a new initiative being championed by several hospital...

Controlling the Negotiating Process

Posted on May 18, 2010
It is important that you control the negotiating process. One example of a company trying to control the process surrounding its negotiating position is that Bank of America tried to keep cases pending against it from landing with U.S. District...

The Value of Withheld Indemnifications

Posted on May 17, 2010
A senior licensing executive from a prestigious technology transfer office recently posed the following question to me: ?Our TTO is not willing to grant an indemnification to our licensee. In view of this position, to what extent should we discount...

Assessing the Probabilities of Obtaining a License

Posted on May 17, 2010
I never met an inventor who didn?t want to know the value of his inventions. Accounting rules allow intangible assets to be recorded on balance sheets at their ?highest and best uses?. The highest and best use of inventions is...

How Sun Tzu Would Outflank Patent Trolls

Posted on January 20, 2010
Much has been written about strategies employed by patent trolls. Many have opined about the tax they represent to operating companies. Others have lauded trolls for providing markets where inventors can sell their patents for reasonable returns. This article will...

Valuation, M&A and Escrows

Posted on May 07, 2009
I learned an interesting point at the Due Diligence Symposium organized by America's Corporate Growth yesterday. It is far better that aggressive reporting of revenues on the part of the company being acquired be discovered by the acquirer before the...

Birds Colliding with Airplanes

Posted on January 18, 2009
The heroic efforts of Capital Chesley Sullenberger--whose skill in landing US Airways Flight 1549 in the Hudson River--are unprecedented. However, birds colliding with airplanes is not uncommon. The following is an excerpt from The Power of Incremental Advantage: How Incremental...

The Pros and Cons of Receiving Funding from Strategic Investors

Posted on December 31, 2008
Entrepreneurs often seek funding from the venture capital arms of large companies. Receiving funding from the likes of Intel Capital or Comcast Interactive Capital does have its advantages. First, in today?s credit drought, capital from any source can be critical...

Newest Sign of Corporate Distress: Selling Customer Contracts

Posted on December 31, 2008
In an attempt to squeeze some cash out of their assets, a few distressed companies are putting their customer contracts on the selling block. Warren Haber, Managing Director at Crossbar Capital said, ?With capital for traditional corporate financing extremely scarce,...

The Perils of Entering into Negotiations

Posted on December 31, 2008
?There is no harm in entering into a dialog,? is a common refrain in the Board Room. So too is, ?We have nothing to loose by negotiating. If we don?t like the deal, we can always walk away later.? Far...

Best Practices for Hiring Executives

Posted on December 31, 2008
It was just a few short years ago that I couldn?t find qualified candidates for a variety of open positions that we had for our research, advisory and training company based in Princeton, New Jersey (USA). Now, recruiters are calling...

Leadership Can't Be Measured by Applause

Posted on December 31, 2008
In May, I spoke before the Ohio Chapter of the Project Management Institute. One of my comments evoked a lively debate with the attendees on one side and myself on the other. I was talking about the importance of confidence...

Definition of Market Share

Posted on November 04, 2008
Jack Welch, former CEO of General Electric, became famous for demanding that each of GE's business units become the number one or number two players in their industries. If the division managers could not capture the first or second market...

Residuals Clauses in Mergers & Acquisitions

Posted on November 04, 2008
There is an interesting clause that can be used in mergers and acquisitions. This is the residuals clause which basically says the buyer is not responsible for information that it retains in the heads of its newly-acquired employees after returning...

Isn't Our Security Worth $1 a Day?

Posted on October 28, 2008
I lost my business when The World Trade Center was demolished in the attacks on September 11, 2001. I was lucky, I could have lost my life. Those who did lose their lives had to be identified by having their...

Olympians are Separated by Incremental Advantages

Posted on August 17, 2008
Over the past few days, we have witnessed Olympic medalists beating out their rivals by the narrowest of margins. For instance, Michael Phelps tied Mark Spitz's record of winning seven Gold medals in an Olympic competition (which Phelps now surpassed...

Incremental Advantages are Crucial in Sports

Posted on July 06, 2008
There was a very interesting article in the recent issue of Fast Company entitled Innovation of Olympic Proportions. This article discussed how clothing and equipment manufacturers are innovating to give Olympic athletes critical, although seemingly marginal, advantages in their competitions...

Disproportionality in Publishing

Posted on July 06, 2008
I just finished reading The Years of Extermination: Nazi Germany and the Jews 1939-1945 by Saul Friedlander. This 663-page book documented many aspects of the Nazi's plan to eliminate Jews from the map of Europe. This thoroughly researched book was...

Ghandi Was Far From Perfect

Posted on July 06, 2008
I recently learned that 1.5 million people were killed during the hostilities that erupted when Pakistan broke away from India. A further 7 to 8 million people abandoned their homes in what became the largest exodus in history. This violence...

Material Adverse Effect

Posted on June 19, 2008
There was an interesting article in The Wall Street Journal today about Apollo Management and Hexion Specialty Chemicals suing Huntsman Corp., which threatened to derail a large buyout of the latter company. Hexion argued that Huntsman's deteriorating financial performance constituted...

Intellectual Property Blog and Social Networking Site

Posted on June 01, 2008
When I was in Israel in March, I had the opportunity to listen to Mr. Zeev Fisher of Appelfeld Zer Fisher discuss Intellectual Property strategies for Emerging Israeli companies. After doing a little digging, I soon realized that Appelfeld Zer...

The Hitler Salute

Posted on June 01, 2008
I recently read the Hitler Salute: On The Meaning of a Gesture by Tilman Allert. This book explained the compulsory nature, pervasiveness and significance of the Hitler salute. As Professor Allert writes, "With the Hitler salute, the regime intruded into...

Djibouti and Eritrea Set Off Tinderbox

Posted on May 25, 2008
According to a story in The New York Times today, two small African nations - Djibouti and Eritrea - are staged to battle along a disputed border. The opposing forces are within feet or inches of one another. Within the...

Intellectual Property Judges

Posted on May 12, 2008
There was an interesting article in BusinessWeek dealing with patent judges. The article said that 40 of the 61 patent appeals judges could have been appointed unconstitutionally. At issue is a 1999 law that lets the PTO director name such...

Protecting Innovation

Posted on May 12, 2008
There was an interesting article in The Wall Street Journal today dealing with the steps Apple undertook to protect its iPod. For instance, the article pointed out that trademark law allows the holder to sue not only manufacturers but also...

Competitive Intelligence Using Patent Analysis

Posted on May 05, 2008
Do you want to unveil your competitors? plans for product development and market entry? Your competitors inadvertently make much of their strategic plans available to the public when they file for patent protection. A careful analysis of patent filings can...

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