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Are Case Predictions Part of the Hypothetical Negotiation?
Some time ago, in a nondescript conference room chosen for its convenience, two parties negotiated a license. On one side of the long oak table sat the patentee; on the other, the infringer. “Okay,” said the patentee, “I know everything about the product you want to sell, and you know everything about my patent. We agree that your product infringes and that my patent is valid, so we've agreed on an amount you will pay me to use my patent. But before we go any further, I have one question: Do we agree that if we went to court, I would most certainly win?”
The conference room does not exist, however, and the preceding discussion never took place. In reality, the accused infringer instead sold the product in question without obtaining a license from the patentee, who accordingly brought a claim for patent infringement. The jury declared the patent valid and infringed, and the court is now pondering the amount of damages to award. But it does not have “hard numbers” to work with; the patentee did not present evidence of lost profits or established royalty rates from other license agreements. Forced to develop an alternative method of determining damages, the court thus imagines the meeting described above: the “hypothetical negotiation.”
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.