Presents

ACC-GNY Retail Practice Group Seminar

Best Practices for Retail Counsel

Wednesday, April 29, 2015Sheppard Mullin New York

Presented by:Daniel Brown, Partner, Sheppard MullinTheodore Max, Partner, Sheppard MullinBryony Cain, Associate, Bird & Bird

Table of Contents

TAB 1 Agenda

TAB 2 PowerPoint Presentations

TAB 3 Lindsey, Michael A. “Overview of State RPM,” The Antitrust Source, Minneapolis: American Bar Association, 2014.

TAB 4 Retail Industry Brochure

TAB 5 Speaker Biographical Information

AGENDA

Welcome and Program Overview Presented by Theodore Max, Partner, Sheppard Mullin (New York)

4:30 – 4:40 PM

An Antitrust Primer and Best Practices to Avoid Liability Presented by Daniel Brown, Partner, Sheppard Mullin (New York)

4:40 – 5:30 PM

Maintaining The Privilege: Best Practices For In-House Counsel, Including Cross-Border Privilege and Discovery Issues Presented by Daniel Brown, Theodore Max, and Bryony Cain, Partners, Sheppard Mullin (New York) and Associate, Bird & Bird (London)

5:30 – 6:30 PM

1

ANTITRUST

A PRIMER AND SOME GUIDANCE

Agenda

Civil and Criminal Antitrust Enforcement

Price Fixing and Other Violations

Competitor Contacts: Warnings and Guidance

2

U.S. Antitrust Laws – Overview

U.S. antitrust laws prohibit:

– Agreements that unreasonably restrain trade (Sherman Act §1)

– Monopolization and attempts to monopolize (Sherman Act §2)

– Exclusive dealing and mergers (Clayton Act)

– Selling the same product at different prices (price discrimination) (Robinson-Patman Act)

– “Baby” Antitrust Acts (i.e., State Laws)

3

2

Why Do We Have Antitrust Laws?

To promote competition

To protect consumers

4

U.S. Department of Justice:“The goal of the antitrust laws is to protect economic freedom and opportunity by promoting free and fair competition in the marketplace.”

GOVERNMENT AND CIVIL ANTITRUST ENFORCEMENT

5

Aggressive Antitrust Enforcers

Antitrust Division of the Department of Justice (“DOJ”)

Federal Trade Commission

Private Parties/Class Action Lawyers

6

3

The DOJ’s Investigative Tools

Federal grand jury subpoenas

Search warrants

Surprise “drop by” interviews

Monitoring/wire-tapping (informants, hidden cameras, microphones)

The “Dawn Raid”

7

U.S. Cartel Enforcement

Significant Jail Time and Fines

– Corporations• Statutory corporate fine of $100 million, OR twice the

gain derived, or loss caused, by the cartel in U.S. commerce.

– Individuals• Fines up to $1 million.• Jail terms up to 10 Years

8

U.S. Cartel Enforcement

“The $100 Million Club”AU Optronics Corporation of Taiwan (2012) Liquid Crystal Display (LCD)

Panels$500 million

F. Hoffmann-La Roche, Ltd. (1999) Vitamins $500 million

LG Display Co., Ltd.

LG Display America (2009)

Liquid Crystal Display

(LCD) Panels

$400 million

Société Air France and

Koninkijke Luchtvaart Maatschappij, N.V. (2008)

Air Transportation

(Cargo)

$350 million

Korean Air Lines Co., Ltd.(2007)

Air Transportation

(Cargo & Passenger)

$300 million

British Airways PLC (2007) Air Transportation $300 million

Samsung Electronics Company, Ltd; Samsung Semiconductor, Inc. (2006)

DRAM $300 million

BASF AG (1999) Vitamins $225 million

Hynix Semiconductor, Inc. (2005) DRAM $185 million

Infineon Technologies AG (2004) DRAM $160 million

SGL Carbon AG (1999) Graphite Electrodes $135 million

9

4

U.S. Cartel Enforcement

10

U.S. Cartel Enforcement

11

Amnesty Program (ACPERA)

DOJ’s “amnesty program” provides immunity to the first corporation involved in a conspiracy that comes forward and cooperates with DOJ against the other conspirators.

Time is of the essence . . . The race has begun.

12

5

13

If The Government Contacts You (Search Warrant)

A. Notify Antitrust counsel Immediately

B.Comply With Government Instructions

C.You Need Not Volunteer Substantive Information

D.Do not Destroy Information

U.S. Cartel Enforcement – Civil Lawsuits

“No sooner does the Antitrust Division bring a case [than it is] followed at a distance by the antitrust plaintiffs’ class-action bar.”

Richard A. Posner, Antitrust in the New Economy, 68 Antitrust L.J. 925, 940 (2001).

14

U.S. Cartel Enforcement – Civil Lawsuits

– Actual damages sustained;

– Treble Damages; and

– Costs and reasonable attorneys’ fees

15

6

16

U.S. Antitrust Laws – Overview

U.S. antitrust laws prohibit:

– Agreements that unreasonably restrain trade (Sherman Act §1)

– Monopolization and attempts to monopolize (Sherman Act §2)

– Exclusive dealing and mergers that substantially lessen competition or tend to create a monopoly (Clayton Act)

– Selling the same product at different prices (price discrimination) (Robinson-Patman Act)

– “Baby” Antitrust Acts (i.e., State Laws)

17

Sherman Act §1

– “Agreements in Restraint of Trade”

– Horizontal and Vertical

– Market Power

18

7

Conduct judged by two standards

• Some conduct is illegal per se — i.e., prohibited regardless of effect on competition

• Most conduct is subject to rule of reason — i.e., permitted if it enhances competition

19

20

Per Se Violations

Intent and Effect Won’t Matter

Activity may be unlawful regardless of intent or motive.

Activity may be unlawful even if it doesn’t work.

Per Se Unlawful Agreements

– Price Fixing (includes agreement on anything that affects the ultimate price or terms of sale for a product or service also includes royalties)

– Horizontal Allocation of Markets, Territories or Customers

– Group Boycotts and Big Rigging

21

8

Price Fixing Takes Many Forms

– Minimum and maximum price, future price, price plans

– Discount terms, rebates

– Terms and conditions of sale including credit terms

– Output, volume, productivity

22

The Rule of Reason

• Vertical non-price restrictions.

• Vertical customer and territorial restrictions.

• Exclusive dealing arrangements.

• Intellectual property licensing agreements

• Joint Ventures.

23

Resale Price Maintenance (RPM)

Resale price restraints are now judged under Rule of Reason. Leegin (2007).

But, still risky because of state laws

It is NOT unlawful to suggest retail prices to resellers, or to have a MAP policy, as long as you do not enter into an agreement or use coercion.

24

9

Refusals to Deal with Distributors, Competitors or Customers

Colgate permits unilateral refusals to deal

Need to Demonstrate Legitimate Criteria for Distributor Selection and Termination

25

Sherman Act §2 (Monopolization)

A company is a monopolist if it has the power to restrict output and raise price above the level that would prevail in a competitive marketplace without losing customers.

In the US, it is not unlawful to be a monopolist if the monopoly is gained and maintained through lawful means.

However, a monopolist may not engage in predatory conduct that excludes competitors or potential competitors from the market.

26

Sherman Act §2 (Monopolization)

monopolize

dominate

conquer

27

Don’t use words in your communications that suggest the unlawful maintenance or abuse of monopoly power, such as:

destroy

squeeze

crush

Kill

eradicate

wipe out

10

28

Price Discrimination(Robinson-Patman Act)

Prohibits a seller from discriminating in price between similarly situated purchasers.

The product sold must be the same – same characteristics, cost, value, quantity, quality, etc.

Cost justification and meeting competition defenses are available.

THE DANGERS OF

COMPETITOR CONTACTS

29

30

Relations with Competitors

What Is An “Agreement”?

A “conscious commitment to a common scheme to achieve an unlawful objective.”

An agreement can be shown by direct or circumstantial evidence.

11

Situations That Could Lead to Allegations of Price Fixing

-A call from a competitor stating “Boy, things sure are tough out there with our customers, don’t you think? Can't we do something to improve the situation?”

-Terminating one distributor after a complaint from another distributor

-High-risk events, such as trade association meetings

31

Trade Associations

Do’s And Don'ts

Do not discuss

Prices

Profits

Discounts

Terms and conditions

Allocation of customers or markets

Refusals to deal with others

OK to discuss

Standards

Lobbying

Codes of Ethics

Member benefits

32

33

Case Study

Mr. Able is berated by his competitor, Mr. Evil, for not getting with the program and increasing price and eliminating discounts. Mr. Able responds that he does not discuss prices in any way with competitors and he is leaving.

Mr. Evil becomes conciliatory -- he says he didn't mean to pick on him. He understood Mr. Able’s high ethical standards and would not think of proposing that they agree to raise price.

Mr. Evil later sends Mr. Able the following email : “Don't worry about today. I’ll just let you know when we are going up.” Mr. Able does not respond.

Mr. Evil sends his announcement (before he sends it to his customers). Mr. Able sees it, assumes it's public and decides internally to meet the increase.

12

34

A Word About . . . E-mails

Consider how other people will describe what you say in their internal emails

Tom casually says to his competitor “Boy, things sure are tough out there, don’t you think? Can't we do something to improve the situation?”

35

A Word About . . . E-mails

Consider how other people will describe what you say in their internal emails

Tom casually says to his competitor “Boy, things sure are tough out there, don’t you think? Can't we do something to improve the situation?”

Tom’s competitor’s internal trip report: “I ran into Tom; I think he'll support a price increase if we go first.”

36

Relations with Competitors

Dangerous Words

Alliance

Support

Share

Stabilize

Organize

Cooperate

Harmonize

13

Defensive Measures

THE BEST ADVICE: Don’t Talk to Them!

Never Discuss Prices with Competitors

Never Discuss Confidential Information

Make a loud exit if prices are discussed at a trade meeting, or dinner.

Avoid the dangerous words of antitrust

ANTITRUST TRAINING / COMPLIANCE POLICY

37

THANK YOU, AND BE CAREFUL!

38

R E TA I L I N D U S T R Y

Sheppard Mullin’s Retail team has firsthand knowledge of the retail industry and deep experience working with a widevariety of industry leaders. Our clients range from large department stores to specialty product chains who sell everythingfrom high fashion to bargain footwear, from hi-tech electronics to low-tech sporting goods.

Retail is the second-largest industry in the United States measured both in numbers of establishments and employees. TheU.S. retail industry generates $3.8 trillion in retail sales annually, or approximately $11,993 per capita. The retail sector isalso one of the largest worldwide with a multitude of facets, including contract manufacturing of private labels, landacquisition, real estate development, finance and leasing, human resource management, logistics and transportation toname a few. Moreover, technology and global markets have rapidly changed how retailers sell their goods. Although thevast majority of retail goods are sold in the most affluent nations, such as the United States and the European Union, theyare often manufactured in foreign lands—China in particular. Thus, expertise in international outsourcing andimport/export trade issues is critical to today’s retailers and their counsel.

To ensure your company is on the cutting edge, you need a law firm that understands your business and can assist you inexpanding into new markets and developing new business strategies that can capitalize on the global market, whileprotecting your products and brands along the way.

Our team can assist your company in virtually every area that affects the retail industry:

• Advertising and Promotions• Anti-piracy and Counterfeit Goods• Antitrust• Corporate Finance and Secured Transactions• Creditors’ Rights & Bankruptcy• E-Commerce• Employee Benefits• Factoring and Financing• Franchise Protection• Import, Export and Customs Matters• Intellectual Property

• Joint Ventures and other Strategic BusinessRelationships, Transactions and Alliances

• Labor and Employment• Land Use• Litigation and Dispute Resolution• Licensing and Distribution• Merchandising• Mergers and Acquisitions• Real Estate Development and Leasing• Stock and Equity transactions• Tax

A D V E R T I S I N G A N D P R O M O T I O N S Word of mouth and a few billboards just don’t cut it any longer. Retailers are utilizing new and sophisticated advertisingand promotion methods to increase market share and brand awareness — from online search optimization, to gift cards,to sweepstakes and contests, product placement, etc. Advertising law necessarily touches on a wide variety of legaldisciplines, including entertainment, intellectual property, unfair competition, privacy and publicity rights, constitutionalrights, e-commerce and antitrust and government trade regulation, among others. Our advertising lawyers specialize inthese issues from both counseling and litigation perspectives.

Sheppard Mullin is experienced in preparing endorsement, sponsorship,sports and entertainment marketing and licensing agreements, clearingonline, print, television and radio advertising copy, complying with privacyconcerns, and preparing advertising agency and media agreements. We alsoadvise clients in complying with state and federal regulations governingsome of the highest profile contest and sweepstakes promotions in thecountry. Our work generally covers the full range of advertising, marketingand promotional endeavors. Our attorneys represent clients in privatelitigation involving false advertising, libel, trademark infringement, copyrightinfringement, right of privacy and right of publicity issues in federal and statecourts. We also handle the investigation of false and deceptive advertisingclaims by the Federal Trade Commission and the various state attorneys

general and self enforcement proceedings by trade groups, including the National Advertising Division of the Council ofBetter Business Bureaus. We also conduct in-house compliance programs designed to educate and train employees in theseareas.

Beyond providing superior technical legal analysis, our attorneys consistently complement and support our client’s uniqueobjectives by devising and executing tactics and strategies that are innovative, aggressive and practical. Our proven abilityto provide “big picture” service on time and on budget is enhanced by firmwide access to the skill, knowledge andrelationships of Sheppard Mullin’s full institutional depth. This depth, combined with our unique expertise in advertisinglaw and litigation, puts us at the top of our field. Our advertising expertise spans the full spectrum of advertising,marketing and promotions issues, including:

• Clearance of third party rights including copyrights in text, music and art• Photographs, graphics, design, logos, slogans and colors• Trademark and trade dress rights• Use of consumer, celebrity and expert testimonials and endorsements to make• Product claims, and protection of privacy and publicity rights• Claim substantiation issues including use of clinical studies and tests to support• Use of comparative advertising• Use of pricing claims including comparative pricing, “sale” pricing, “free” offers, and “no sales tax” promotions• Use of rebates• Use of “Made in U.S.A.” claims• Use of “green” claims• Text of product claims, warranties, warnings and disclaimers• Branded entertainment and promotional tie-in transactions• Clearance review covering copyright, trademark, privacy, publicity and First Amendment rights, defamation and

related issues

A N T I - P I R A C Y A N D C O U N T E R F E I T G O O D SPiracy is not a legal theory, it is a business problem that costs the global economy trillions of dollars per year. Piracy canattack your lifeblood: your own private label retail brands. Private label brands are outstripping branded sales two-to-oneover the past seven years. Meanwhile, newer and cheaper manufacturing technologies have given pirates new tools, ashave illicit online distribution methods.

We can also work with retailers to help prevent the receipt and distribution of pirated branded goods. We partner withour clients to develop cost-effective anti-piracy programs to meet their specific needs. Our attorneys have been trusted bythe U.S. and Japanese governments to advise them on domestic and international anti-piracy concerns. We also havedecades of experience representing fashion and apparel and electronics manufacturers in anti-piracy matters. Ourattorneys have planned and executed domestic and international seizures. We have made the law (on behalf of afootwear company) that most retailers and manufacturers now rely on for extraterritorial application of the U.S.Trademark laws. We coordinate with investigators and make criminal referrals. We are experts at addressing and takingdown unauthorized Internet sales and auctions.

Whether it be a brand, a logo, a pattern or a design on a knockoff, we recognize that is the heart of your business. Piracy will not disappear, but Sheppard Mullin can provide your business with the tools and a plan to fight back that is rightfor you.

A N T I T R U S TFor decades, Sheppard Mullin has been a leader in the antitrust bar. Gordon Hampton, one of the firm’s name partners,was a founder of the Antitrust Section of the American Bar Association. That tradition continues today with a dynamic

Antitrust and Trade Regulation practice spanning every aspect of antitrust law. Our practice currently encompasses matters involving mergers and structural issues, criminal grand jury proceedings, international antitrust enforcement,pricing practices, product distribution, joint ventures, class actions based on federal statutes and state unfair competitionlaws, among many other areas

C O R P O R A T E F I N A N C E A N D S E C U R E D T R A N S A C T I O N SWhether your corporate finance needs involve public offerings, private placements, including venture capital and angelfinancing, Sheppard Mullin attorneys are experienced and ready to assist. We have served as counsel to a variety of issuers,underwriting firms and investment banking firms in connection with initial and other public and private offerings of securities. Our attorneys have participated in the private placement of securities, representing issuers, private placementagents, equity funds, institutional investors and venture capital firms. We have been on the vanguard of every type ofprivate financing transaction, including seed financing angel investments, venture capital financing, later stage equity ormezzanine financing, PIPES and private debt financing. The hands-on experience of our attorneys in a variety of offeringsgives us the ability to develop creative solutions to problems encountered in the course of any corporate financing.

C R E D I T O R S ’ R I G H T S A N D B A N K R U P T C YWhile your business may flourish, those of your customers, vendors and suppliers may not always be so fortunate.Sheppard Mullin is a leader in creditor/lender rights counseling. Our attorneys work to develop solutions for creditors thatcreate and preserve value, requiring an in-depth understanding of litigation strategies and commercial, bankruptcy andreal estate law. Provisional remedies are time sensitive and offer tactical advantages in resolving a creditor/debtor dispute.

These include:• Writs of attachment• Writs of possession over personal property• Judicial foreclosure actions• Appointment of receivers

E - C O M M E R C ESheppard Mullin created the Internet – just checking to see if you are paying attention. Companies and designers arecreating their own internet presence. We assist and partner in development, including: software agreements, contractswith internet designers and providers, disclaimers and copyright notices, copyright protection, consent agreements, properuse of photos, sponsorship agreements. In addition, assistance is needed to monitor, enforce and protect againstunauthorized sale of products, defamation, domain infringements, and false advertising.

Online commercial endeavors also yield a variety of new and complex challenges stretching conventional law far beyondits original scope. Whether a company uses the Internet as an active and dynamic medium for transacting business or as amore passive advertising forum, legal disputes with competitors and other intellectual property owners are inescapable.

Sheppard Mullin attorneys provide guidance and representation in both transactions and litigation in a variety of e-commerce areas, including:

• Domain name ownership• Meta tag copyright infringement• Unlawful framing or linking• E-commerce transaction disputes• Protection and policing of proprietary content• Privacy concerns

• Libel and defamation• Jurisdictional effects of website ownership• Online patent, copyright, trademark and trade

secret disputes• Authority of the Internet Corporation for

Assigned Names and Numbers (“ICANN”)

Our attorneys have helped draft and are familiar with some of the newer regulations developed specifically to address e-commerce. We have expertise in drafting protective user agreements and privacy and e-signature policies. SheppardMullin’s experienced attorneys are familiar with the laws and regulations governing Internet business, making us effectiveadvocates for our clients’ interests. Among other laws, Sheppard Mullin has assisted clients in interpreting and litigatingissues arising out of the:

• Anti-Cybersquatting Consumer Protection Act• Federal Electronic Communications Privacy Act• Federal Computer Fraud and Abuse Act• California Computer Data Access and Fraud Act• ICANN’s Uniform Domain Name Dispute Resolution Policy

Our track record of resolving Internet disputes with a phone call, cease and desist demand letter, arbitration demand orby bringing and defending litigation in state and federal courts makes our firm a regular choice to solve Internet relatedproblems.

E M P L O Y E E B E N E F I T SSheppard Mullin offers a premier benefits law practice. Our attorneys have represented employers, plan sponsors,investment managers, plan fiduciaries, plan trustees and syndicators of investment vehicles in connection with all aspectsof qualified and nonqualified retirement plans and employee benefit matters under the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986. As a result, we have had the opportunity to analyzeissues, provide advice, draft documents and negotiate positions from many different perspectives. Our well roundedexpertise in this highly complex area of the law has benefited our clients for the last several decades. Our experienceincludes:

• Defined contribution and defined benefit plans• Profit sharing and 401(k) plans• Supplemental executive retirement plans (“SERPs”)• Employee Stock Ownership Plans (“ESOPs”)• Rabbi trusts

Our advice spans the design, implementation and administration of all such plans. It also includes all work associated withthe defense of employee benefit disputes, the evaluation of benefit claims and securing determinations from the InternalRevenue Service and, where necessary, the Department of Labor.

F A C T O R I N G A N D F I N A N C I N G Our team is experienced in all variations of industry related financing transactions, including:

• Financing and distribution arrangements• Rights acquisition financings• Revolving credit finance facilities• Complex secured distribution arrangements• License financing and securitization facilities• Working capital revolving lines of credit• Merger and acquisition financings, including both

public senior debt and senior bank debt• Complex intercreditor and inter-party arrangements• Foreign export/import transactions

• Deferred compensation plans• Split dollar life-insurance plans• 403(b) tax sheltered annuities• Self-funded and insured health and welfare benefit plans• HIPPA related challenges

F R A N C H I S E P R O T E C T I O NFranchising has become an important and frequently used businessform in the specialty retail industry. Approximately 20% of the U.S.gross national product results from franchise operations, whichemploy a combined 8 million people. Historically, over 40% of allretail sales were made by franchise establishments, with new goodsand services being added to franchising’s repertoire on a daily basis.As franchise systems mature into billion dollar enterprises and asfranchises and potential franchises seek increased participation andprofit, franchise related legal disputes are inevitable. Franchising’slegal structure requires an interdisciplinary approach to franchisingtransactions and disputes. While common law contract and tort principles are applicable to every franchise relationship,the field is increasingly dominated by statutory law, including specialized state and federal franchising statues, antitrust,trademark, copyright and patent law. The franchise relationship goes hand-in-hand with brand protection and intellectual property, as the franchisee is often the brand’s largest exposure to the consumer.

Sheppard Mullin clients rely on the firm’s experience and specialized knowledge in the areas of franchise litigation, substantivefranchise law, intellectual property, bankruptcy and creditors’ rights, labor and employment and antitrust and trade regulationto provide an integrated, one-stop resource for clients presented with the unique challenges facing the franchise industry.

I M P O R T , E X P O R T A N D C U S T O M S M A T T E R S The movement of goods and information across borders – whether as finished products, components, demonstration models, or selling aids – is a fact of life. Another fact of life is the intricate web of governmental regulations that oversee,control, and sometimes prohibit the movement of such products and information outside across and within borders.Sheppard Mullin advises and represents U.S. and foreign clients in connection with the wide range of compliance andenforcement issues relating to the import, export and re-export of products, Customs, Departments of Commerce andState regulations, as well as the economic sanctions rules of the Treasury Department.

IMPORTING OF GOODS

We assist clients with:• Representation of foreign and domestic companies and trade associations in antidumping and countervailing duty

investigations before U.S. Department of Commerce and International Trade Commission. Admissibility determinations– including the US Department. of Transportation, the Environmental Protection Administration, the FDA, and the USDepartment of Agriculture

• Drafting of compliance manuals, preparation of prior disclosures and compliance audits• Petitions for relief from fines, penalties, merchandise seizures, and merchandise forfeitures• Cancellation or mitigation of penalties and expediting of the release of goods• Guidance on country of origin marking and labeling requirements• Advice on binding rulings, protests and judicial proceedings• Guidance on special compliance programs, including the Customs-Trade Partnership Against Terrorism (C-TPAT),

Focused Assessments and the Importer Self-Assessment Program• Defending customs fraud allegations in litigation before the Court of International Trade• Representation of customs brokers and brokerages in all phases of customs laws and regulations, including

applications, licenses, permits, investigations, and record-keeping requirements• Counseling regarding customs classification and valuation issues, and regarding export documentation and licensing and

international sanctions regulations; obtained export licenses from State Department Office of Defense Trade Controls,Commerce Department Bureau of Export Administration and Treasury Department Office of Foreign Assets Control

• Representation of freight forwarders on security clearance matters• Represent importers and carriers investigated by Federal Maritime Commission for alleged mis-description of goods

EXPORTING OF GOODS

We assist clients with:• Commodity classifications and commodity jurisdiction requests• Export license-related counseling under the International Traffic in Arms• Regulations (“ITAR”) and Export Administration Regulations (“EAR”)• Manufacturing License Agreements• Technical Assistance Agreements• Distribution Agreements• Planning and implementing export compliance programs• Export compliance audits and internal investigations• U.S. anti-boycott laws• Trade embargoes• Limitations on foreign agent fees• Foreign Ownership Control or Influence (“FOCI”)• The Foreign Corrupt Practices Act• Bribery• Allowability of and the ability to allocate foreign selling costs under federal contracts

I N T E L L E C T U A L P R O P E R T Y P R O T E C T I O NProtecting your intellectual property is a key element in maintaining your competitive advantage. Our team of intellectualproperty attorneys will work side-by-side with you to register and protect your rights through:

• Patent and trademark and ownership searches• Preparation of and filing foreign and domestic patent (including design

patent), trademark and copyright applications• Monitoring and maintaining an extensive and thorough in-house database

and docketing system• Drafting, negotiating, implementing and administering all types of

agreements that license, transfer or grant rights in your intellectual property• Protecting your rights and helping you to avoid the infringement of other’s

rights through extensive searches and investigations, preparation of noticeletters, and recordation of IP rights with U.S. Customs

We offer a complete international trademark practice, including worldwidetrademark portfolio management and brand development services, internationaltrademark, service mark and trade name clearances, trademark prosecution on anational, regional (e.g., European Union) and international basis, as well asinternational licensing and distribution agreements, supplier, manufacturer andvendor agreements.

Our attorneys have handled transactions ranging from Fortune 500 international intellectual property and brandacquisitions to international title searches, due diligence and worldwide intellectual property assignments. With ournetwork of associated attorneys throughout the world, we handle trademark registration matters in practically everycountry. Our experience extends to creation and management of large portfolios exceeding 500 registrations worldwide.

We also perform brand watching services, render international infringement opinions, engage in anti-counterfeitingactions and enforcement activities, and in-use investigations, conduct due diligence, and analyze the proper brandprotection and enforcement activities.

We routinely counsel clients regarding Copyright Act protection and obtain copyright registrations, including those specificto the retail industry, such as private label designs, web sites and marketing communications, music and audiovisual works,

and fine art. Once a copyright is registered, we work with clients to preserve exclusive rights under both U.S. law andinternational treaties.

In addition to protecting our clients’ rights, we ensure they do not run afoul of the rights of others. We counsel to avoidinfringing third party copyrights and obtain licenses to use third party copyrighted works.

J O I N T V E N T U R E S A N D O T H E R S T R A T E G I C B U S I N E S S

R E L A T I O N S H I P S , T R A N S A C T I O N S A N D A L L I A N C E SSheppard Mullin advises clients in transactions involving various types of “corporate partnering” arrangements. We havein-depth expertise in structuring and negotiating joint ventures and strategic alliances (whether a start-up company,privately held business, public corporation or other form of joint enterprise) for resource and product acquisition,distribution, development, infrastructure development, market penetration and risk sharing. We advise on all ancillaryagreements, such as marketing, distribution, license and supply agreements. Structuring and negotiating these verycomplicated transactions requires, in addition to legal guidance and counseling, substantial business acumen andexperience, all of which we have acquired through the depth and breadth of our transactional experience. Our expertiseranges from start to finish, including the formation, operation, dispute resolution and potential liquidation of theenterprise. Our proven track record in advising clients to select the right joint ownership structure and negotiate all relatedagreements has allowed us to close these transactions quickly and efficiently.

L A B O R A N D E M P L O Y M E N TSheppard Mullin has one of the largest and most experienced Labor and Employment law practices in the country. Inaddition to representing employers of all sizes—ranging from Fortune 100 companies to start-ups—Sheppard Mullinprovides labor and employment advice to retail companies, including department and clothing stores; wholesalers anddistributors; and retailers of apparel, consumer goods and housewares.

Sheppard Mullin attorneys provide labor law counseling to employers on a broad range of issues, including:

• Employee discipline, termination and other employee relations issues

• Employee benefits, employee leaves and wage andhour issues

• Employment contracts and executive compensation• Handbooks and personnel manuals• Reductions in force• Harassment and discrimination• Management and employee training programs

• OSHA• Workplace privacy and workplace violence• Internet and e-mail usage policies• Affirmative action and OFCCP audits• Disability access and accommodation• Employee arbitration agreements• Drug and alcohol testing• Immigration issues

Our attorneys have also litigated and resolved virtually every type of dispute that can arise in the day-to-day operations ofa retail company, such as:

• Wage and hour class actions• Harassment and discrimination claims• Defamation claims arising from the workplace• ERISA claims

• Stock option disputes• Unfair competition, trade secret and privacy matters• Qui Tam False Claims Act and whistle blower actions• Wrongful termination claims

Sheppard Mullin has unique expertise in the wage and hour area and regularly works with employers to ensure that theircompensation and classification practices comport with state and federal law. The firm is regularly called upon to defendcomplex wage and hour class action litigation. Our attorneys are known for the ability to resolve disputes without resorting to litigation or trial.

We also represent clients in traditional labor law matters pertaining to unions and the National Labor Relations Act.

• Collective bargaining• Prevailing wage compliance and disputes• Strikes, picketing and boycotts

• Unfair labor practice charges• Union organizing drives and the de-unionizing process• Labor arbitrations

In addition, Sheppard Mullin offers expertise in the negotiation and documentation of senior executive employmentagreements. This expertise includes devising performance and stock oriented compensations plans, as well as otherdeferred or incentive based plans, preparing confidentiality, trade secret and non-interference agreements and advisingon tax and employee benefit matters.

L A N D U S EOur land use attorneys have frequently been the leaders of permitting and land acquisition efforts for large, multifaceteddevelopment projects throughout California, including retail stores and regional shopping centers. We regularly litigateissues relating to the California Environmental Quality Act (“CEQA”) and the National Environmental Policy Act (“NEPA”).We have handled many important cases through the California Courts of Appeal and the federal appellate courts. Ourfamiliarity with CEQA and NEPA enables us to provide efficient, focused counseling in the preparation of environmentalimpact reports and in the creation of a defensible record in anticipation of CEQA or NEPA litigation.

L I C E N S I N G A N D D I S T R I B U T I O NSince you can’t do it all yourself, licensing and distribution relationships have become a crucial part of the retail industry.These can be some of the best and most profitable relationships your company has, or some of the worst. The strengthand quality of your license and distribution agreements has much to do with whether your relationships are the former orthe latter. Sheppard Mullin attorneys handle everything from single party licenses, to multi-party multi-level distributionand license agreements, both domestically and internationally.

L I T I G A T I O N A N D D I S P U T E R E S O L U T I O NSheppard Mullin’s Business Trial Practice has more than 200 litigators with significant trial experience in jury and court trials, and arbitration. This is something most law firms cannot claim. Other law firms may have an army of litigators, butthey don’t have an army of trial lawyers. Our lawyers promote the use of mediation and other dispute resolution mechanisms as alternatives to trial – alternatives that can sometimes save substantial costs and time to our clients in appropriate cases. We also pride ourselves on our ability to resolve matters quickly and efficiently through pre-trialmotions. But when these alternatives to trial don’t work, you want a lawyer who is not afraid to go to trial and who hasexceptional trial skills.

The firm’s practice involves virtually all aspects of business and commercial litigation, and our litigators represent clientsfrom a broad spectrum of industries including retail.

Our work for the retail sector in particular has run the gamut from complex commercial, to tax, to consumer class actiondefense. We have litigated numerous large ticket matters, often class actions, including:

• Deceptive and false advertising claims• Consumer fraud actions• Securities fraud and shareholder actions• Wage and hour

• Song-Beverly Credit Card Act Claims• 17200 – California Unfair Competition Law• Unfair Trade Practices Act• Privacy and consumer information claims

Sheppard Mullin is a leading class action defense firm. Our lawyers have successfully defended class actions of all shapesand sizes. We have the knowledge and practical know-how to address all stages of class and representative cases, frompleading and class certification through summary judgment and trial where settlement is not appropriate.

In recent years, many retailers with operations in California have faced class action lawsuits brought under California'sSong-Beverly Credit Card Act related to requests to consumers for personal information. Sheppard Mullin has defendedretailers throughout the state in such actions and has attorneys experienced in the defense of such cases throughout ourCalifornia offices. Our attorneys have also counseled retailers on compliance with California consumer privacy laws.

Our litigators counsel clients in multifaceted controversies that extend outside the courtroom and involve sensitive issuesof legislation, regulation, and reputation, often in more than one jurisdiction. Our class action team has handlednationwide and statewide class actions in federal and state courts across the country, and Sheppard Mullin has served ascoordinating counsel in a number of Multi-District litigation proceedings.

The depth and breadth of our class action defense practice is demonstrated by the fact that our lawyers were involved inthe first common law consumer fraud class action in California, and we worked directly with the Judicial Council ofCalifornia and the Los Angeles Superior Court to draft key rules governing California class actions. We pride ourselves onproviding our clients with the most efficient and productive resolution to their matters early through our aggressive andinnovative law and motion practice.

Our lawyers keep on top of key developments that could lead tolitigation for our clients, and we keep them informed on how tobe prepared to prevent litigation. As a value added service, weprovide continuing education seminars to our clients on topicsrelated to class actions, unfair competition, false advertising, andwage and hour issues.

M E R G E R S A N D A C Q U I S I T I O N SWhen it is time to go shopping or be shopped, Sheppard Mullinoffers its clients a savvy and talented group of M&A attorneys that“do deals” throughout the United States and overseas. We advise individuals and small privately held businesses, privateequity firms and multinational public corporations on all types of M&A transactions, including mergers, purchases and salesof stock and assets, management buyouts, recapitalizations and other corporate restructurings. Our attorneys have beeninvolved in transactions that have been both friendly and hostile, have advised both foreign and domestic participants oncross border transactions and have utilized a myriad of acquisition structures and forms of consideration to help accomplishour clients’ goals. Our attorneys represent bidders, target companies, investment bankers, financial advisors and manyothers that participate in M&A transactions. We have also been engaged on numerous occasions to serve as special counselto boards of directors and to independent director committees.

R E A L E S T A T E D E V E L O P M E N T A N D L E A S I N G O F R E T A I L F A C I L I T I E S Whether clients want to purchase real estate to develop their own facilities or lease facilities from other commercialdevelopers, our Real Estate attorneys represent retailers in real property ownership and development.

Sheppard Mullin has vast experience in commercial leasing transactions. Our experience includes the unique issues ofurban and suburban office space, industrial parks, shopping centers, mixed use retail, distribution centers and build-to-suits.

We negotiate and prepare numerous special purpose high rise ground leases for urban high rise buildings, corporateheadquarters, campuses and free standing retail and commercial facilities. The lease forms we prepare are tailored to therequirements of specific markets so that the lease becomes more of a marketing tool and less of an impediment to thedocumentation of a transaction. We have also developed forms for those transactions that are typically ancillary to leasessuch as tenant improvement agreements, parking agreements and guarantees. Our attorneys have far reaching experiencecounseling tenants in connection with lease disputes, workouts and buyouts, including resolution of issues involving theexercise of options, assignment and subletting, tenant improvements and defaults.

T A XJust as you expect to pay taxes, you should expect your law firm to provide sophisticated tax counsel. Sheppard Mullin’stax attorneys advise on all areas of corporate tax law, as well as provide clients with sophisticated expertise in employeebenefits law, executive compensation, estate/wealth planning and tax-exempt or tax-advantaged finance. Ourunderstanding of evolving tax law allows us to consistently design transactions and solve seemingly insurmountable taxproblems in the most advantageous way possible for our clients.

Because tax issues are integrated into the firm’s entire practice, our tax attorneys are known for their ability to collaborate.Our tax attorneys regularly work with members of the Corporate and Securities, Real Estate and Banking and Financepractices to advise our clients in structuring transactions that comply with federal, state and international tax laws. Wecan assist clients in structuring transactions and planning business affairs in order to reduce income, sales, transfer, propertyand other taxes.

A sampling of the matters we handle includes:

• Taxable and tax-free mergers, acquisitions and sales• Venture capital financing and business formation• Choice of entity and combinations of entities, including C corporations, S corporations, limited liability companies,

general and limited partnerships, REITs and cooperatives• Joint ventures and strategic alliances• Foreign investment in the U.S.• Expansion of U.S. businesses abroad

Our goal is to help our clients achieve their business objectives with practical and effective tax reduction planning.

S T O C K A N D E Q U I T Y T R A N S A C T I O N S The past decade has seen executive compensation plans become increasingly technical and complex. Employers havelearned that to effectively grow their business, they must find ways to compensate executives who contribute to the overallsuccess of the company. Incentive stock options have helped many employers motivate employees not only to contributeto the overall success of the company, but also to stay with the company and acquire more of a vested interest. Tailoredcommission plans have helped employers keep their sales forces focused on more specific growth goals. To lure the bestrecruits, employers have also established attractive benefit plans such as bonus plans and stock appreciation rights plans,phantom stock and deferred compensation plans and supplemental executive retirement, employee stock ownership andpension plans. Those employers who have not critically evaluated their compensation packages have found themselveslosing valuable employees and recruits to their competitors.

Sheppard Mullin assists employers in establishing tailored, attractive incentive and compensation plans to win and keep theemployees its competition wants most. We advise on establishing compensation plans designed to advance anorganization’s interests, while at the same time rewarding employees for productive contributions. Our attorneys draft stockoption plans, assist employers in establishing procedures for administering stock option plans and advise employersregarding stock option plan compliance. We assist employers in developing tailored bonus and commission plans thatreward employees for contributing to the growth and increased revenue of an organization, as well as assist employers onhow to establish and administer welfare and benefit plans that comply with the Employee Retirement Income Security Actof 1974 (“ERISA”).

We also defend clients in disputes arising from compensation agreements and benefit plans. Our litigators have defendedemployers in compensation disputes ranging in complexity from simple claims for unpaid wages, to informal and courtlitigated stock option disputes, to claims for breach of commission or bonus agreement, to ERISA claims for employeebenefits.

BeijingBrussels

Century CityChicagoDel MarLondon

Los AngelesNew York

Orange CountyPalo AltoSan Diego

San FranciscoSeoul

ShanghaiWashington, D.C.

www.sheppardmullin.com

www.fashionapparellawblog.com

Daniel L. BrownPartner

30 Rockefeller PlazaNew York, NY 10112

T: 212.634.3095F: 212.655.1768dlbrown@sheppardmullin.com

Practices

Antitrust andTrade Regulation

International Practice

Litigation

Class Action Defense

International Arbitration

Securities Litigation

Industries

Hospitality

Self-Storage

Education

J.D., Fordham UniversitySchool of Law, 1998

B.A. The University ofMichigan, 1993

Daniel Brown is a partner in the Business Trial Practice Group in thefirm's New York office. Mr. Brown is also the Chair of the firm's ProBono Committee.

Areas of Practice

Mr. Brown specializes in high stakes, complex, commerciallitigations and arbitrations, including consumer class actions. He hasparticular experience litigating “bet the business” disputes amongbusiness owners and by consumers and competitors alleging claimsarising from many state and federal statutes, including claims underthe antitrust, securities, trademark, copyright, and consumerprotection laws.

A significant part of Mr. Brown’s litigation practice has alwaysinvolved the representation of large and independent/boutique hotelbrand managers, franchisors and owners in various disputes arisingfrom the hotel owner-manager relationship, including litigatingbreach of contract and breach of fiduciary duty disputes arising fromterminations of hotel management and other agreements, andserving as trial counsel in cases that have set the standards fordetermining damages in the context of hotel management relateddisputes.

Mr. Brown also represents in litigation and counsels clients in theself-storage industry and is the co-chair of the Firm’s self-storageindustry team.

Mr. Brown is the recipient of Disability Rights Advocates’ 2014 NewYork Impact Litigation Award, given in recognition of his lifechanging litigation on behalf of hundreds of thousands of peoplewith disabilities.

Clerkships

Intern, the Honorable Michael B. Mukasey, United States DistrictCourt for the Southern District of New York

Admissions

New York

U.S. Court of Appeals for the First and Second Circuits

U.S. District Courts for the Southern and Eastern Districts of New York

Honors

Recipient, New York Impact Litigation Award, in recognition of life changing litigation on behalf ofpeople with disabilities, Disability Rights Advocates, 2014

Mr. Brown was a member of the pro bono team at Sheppard Mullin receiving the 2011 FrankelAward from Human Rights First for their successful representation of Abdalmageed Haroun, aprominent human rights activist and former Sudanese prisoner. In the Sudan, Mr. Haroun's workfocused on women's rights, the plight of internally displaced refugees, and the victims of theconflict in Darfur. As a result of his selfless and heroic efforts, Mr. Haroun was detained for months,persecuted, tortured, and threatened with death by the Sudanese government, forcing him to fleethe country. The firm represented Mr. Haroun in connection with his application for asylum in theUnited States.

New York Super Lawyer, Super Lawyers, 2014

New York Rising Star, Super Lawyers, 2011

Experience

● Avalos v. IAC/Interactivecorp. et al., 13-cv-08351 (S.D.N.Y). Obtained pre-answer dismissal ofcomplaint concerning internet dating profiles and asserting claims under the Lanham Act,Copyright Act, RICO statute, and state laws.

● Taxis for All Campaign v. Taxi & Limousine Commission, 11-cv-00237 (S.D.N.Y.). Achieved ahistoric settlement with New York City In this case challenging the New York City taxicab fleetas not wheelchair accessible, in which the City has agreed to have the New York taxi fleet,which is currently only 1.8% accessible, become 50% accessible over six years.

● BCID v. Bloomberg, 11-cv-6690 (S.D.N.Y.). Successfully represented and tried a case onbehalf of a class of all persons with disabilities in New York City alleging that New York Cityhas failed to adequately plan for people with disabilities in emergencies.

● In re MSR Resort Golf Course, LLC, 11-10372 (Bankr. S.D.N.Y.) and In re M Waikiki (D. HI.).Successfully represented Marriott in two high profile litigations arising from termination ofhotel management agreements.

● Cohen vs. T Mobile USA, Inc. et. al, 10cv02913 (E.D.N.Y.). Obtained a pre-answer and pre-motion dismissal on behalf of T-Mobile USA, Inc. in a case alleging violations of New YorkGeneral Business Law § 349.

● Kalimantano GmbH, et. al v. WatchNetwork.com, Twitter Inc., et. al, 13 -560 (S.D.N.Y.).Successfully represented WatchNetwork.com in case alleging violations of theAnticybersquatting Consumer Protection Act, defamation, damage to business reputation,and invasion of privacy in connection with information on the defendants’ websites.

● Respira Health LLC v. Med Biogene, Inc., 650365/2011 (Sup. Ct. NY. Co.). Successfullydefended biotech company against lost profits claims arising from alleged breaches of a letterof intent.

● Banxcorp v. Bankrate Inc., 2:07-cv-03398 (D.N.J). Successfully represented LendingTreeagainst antitrust claims.

● Member of litigation and trial team for Samsung Electronics in the largest ever civil antitrustcase.

● In re SRAM Antitrust Litig., MDL No. 1819 (2006-present): National counsel defending civilprice-fixing class actions regarding computer memory chips.

● Camofi Master LDC, et al. v. Advanced Cell Technology, Inc., Index No. 652816-2011 (N.Y .Sup. Ct. 2013); Cranshire Capital Master Fund, Ltd., 11 Civ. 8755 (DLC)(JCF)(S.D.N.Y. 2012);Black Mountain Equities, Inc. v. Advanced Cell Technology, Inc., 11 Civ. 7305 (PAE) (S.D.N.Y.2012); Alpha Capital Anstalt v. Advanced Cell Technology, Inc., 09 Civ. 670 (LAK) (S.D.N.Y.2012). Defended biotechnology company in lawsuits alleging failure to honor convertible noteand warrant obligations. Obtained favorable settlement of each lawsuit.

● Blue Tree Hotels Investment (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369F.3d 212 (2d Cir. 2004). Successfully argued the appeal before the Second Circuit Court ofAppeals, which resulted in the dismissal of alleged antitrust violations against the defendantsarising from purported violations of the Robinson-Patman Act.

● Lead litigator for the indenture trustee for $1.7 billion in notes in the Adelphia bankruptcyproceedings.

● Represented hotel managers and owners in litigations and arbitrations concerning thetermination of hotel management agreements.

● Successfully defeated an action seeking injunctive relief and the attachment of the assets ofan apparel company.

● Represented an inventor of computer software and business owner in an arbitration arisingfrom the purchase of his business and software.

● Represented a multinational conglomerate corporation in an international arbitrationconcerning a distribution and licensing agreement.

● Represented an appliance manufacturer in an international arbitration concerning thetermination of an exclusive distributorship.

● Represented a cell phone manufacturer concerning its rights under a joint-ventureagreement.

● In Hall v. New York Roadrunners Club, 99-Civ.-4122 (E.D.N.Y.): Lead counsel for Plaintiffs, alawsuit brought under the Americans With Disabilities Act in connection with the running ofthe New York City Marathon. The historic settlement of that lawsuit included equal treatmentfor wheelchair athletes in the largest spectator event in the world.

● Mr. Brown has made significant contributions to cases that have been reported in the NewYork Law Journal, New York Times and Wall Street Journal. Mr. Brown has also appeared onCNN, NBC and Court TV.

● Mr. Brown has been a featured speaker at hospitality, antitrust, electronic discovery and otherContinuing Legal Education programs.

Articles

Litigating in Bankruptcy Court: Do You Know Where You Are?New York Law Journal, September 24, 2012

Two First Department Decisions Adopt 'Zubulake'New York Law Journal, April 16, 2012

Using Prior Expert Testimony Requires Extra EffortNew York Law Journal, July 18, 2011

Former Student Athletes’ Right of Publicity and Antitrust Claims Will Proceed Against the NCAAand Electronic ArtsSports Litigation Alert, June 3, 2011

“UNITED STATES,” International and Comparative LitigationKluwer Law International, 2011

In re NCAA Student-Athlete Name and Likeness Licensing LitigationFormer Athletes Seek A Share of NCAA Licensing ProfitSports Litigation Alert, March 12, 2010

Savvy Use of Social Networking SitesUnderstanding the potential uses of social networking sites should be considered when preparingfor litigationNew York Law Journal, September 8, 2009

Judgment Secured: Now What?‘Koehler’ provides greater New York state access to banks for collection.New York Law Journal, July 20, 2009

Can Gender Discrimination or Provocative Dress Requirements Ever be Appropriate for YourEmployees?HotelExecutive.com, June 1, 2009

New Hotel Projects May Have No Choice But to Go GreenHotel Executive, April 1, 2009

Common Legal Issues that Confront Hotel OperatorsHotelExecutive.com, December 1, 2008

Condo Hotels As SecuritiesHas the Litigation Boom BegunHotelExecutive.com, July 1, 2008

Arbitrating Hotel Management Agreement Disputes: Beware of "Arbigation"Hotel Executive.com, March 1, 2008

Condo Hotel Explosion Raises New IssuesNovember 28, 2005

Books

Cloud Computing Legal Deskbook, 2013 Edition, Thomson Reuters Westlaw (Author of Chapter onElectronic Discovery)

Author of a comprehensive chapter on U.S. antitrust and federal civil procedure in International andComparative Competition Litigation, a treatise comparing the competition laws in over 20jurisdictions world-wide.

Sheppard Mullin Blog Posts

"Monetary Threshold For Commencing Cases In Manhattan’s Commercial Division Raised to$500,000," February 7, 2014

"Second Circuit Holds that Federal Common Law Prohibits Trading By Insiders of a CaymanIslands Corporation While In Possession of Material Nonpublic Information," February 4, 2014

"Subpoena of AOL Senior Executive Under the "Apex Rule" Disallowed Absent SpecialKnowledge," March 6, 2013

"Court Provides Guidance for Seeking Damages Arising From Trades of Distressed Claims,"August 13, 2012

"Second Circuit Rejects $2 Billion Class Action Award Against The Republic of Argentina," June 8,2010

"Plaintiffs' Failure To Satisfy FTAIA's "Two-Step Dance" Results In Dismissal Of Foreign PurchaseClaims," June 3, 2010

"The United States Supreme Court Rules That Class Arbitration Is Improper When Parties To AnArbitration Agreement Have Not Explicitly Authorized Class Arbitration," May 11, 2010

"eBay Auction Sellers' Bid For Class Certification Rejected," April 28, 2010

"Second Circuit Court of Appeals Rules That Antitrust Complaint Satisfies Twombly PleadingStandards," February 17, 2010

"Air Cargo Class Action to Proceed -- District Court Overrules Twombly DismissalRecommendation," October 12, 2009

"The Third Circuit Clarifies the "Rigorous Analysis" Courts Must Apply In Class Certification,"February 10, 2009

"California Court of Appeal Drops The Other Shoe: Pass-on Defense Viable," August 15, 2008

"Hospital Lacks Antitrust Standing to Pursue Claims Against Johnson & Johnson Where, Pursuantto an Agreement with J&J, Hospital Purchased Products from a Distributor," June 9, 2008

"Antitrust Class Action Monopolization Claims Against eBay Will Proceed; Tying ArrangementClaims Dismissed," April 7, 2008

"The Fourth Circuit Court of Appeals Upholds Most of the State of Washington's Regulations on theSales of Alcoholic Beverages," March 12, 2008

"Multimillion Dollar Class Action Settlements Approved In Insurance Brokerage Litigations,"October 5, 2009

Media Mentions

EY Says Omnicare May Doom Lehman Fraud Claims

Law360, April 3, 2015

Rye Brook Attorney Files Lawsuit to Compel P.C. Station AccessibilityWestmore News, January 2, 2015

Hospitality Cases To Watch In 2015Law360, January 2, 2015

City Settles Litigation Over Disaster PreparednessNew York Law Journal, October 2, 2014

New York City to Alter Preparations for Disabled in DisastersNew York Times, September 30, 2014

Judge OKs 'Historic' Deal for Accessible TaxisNew York Law Journal, September 18, 2014

Sheppard Mullin Litigator a Fighter for the DisabledThe American Lawyer Daily, January 6, 2014

Sheppard Mullin Litigator a Fighter for the DisabledThe American Lawyer, January 6, 2014

NYC Ends Disabilities Suit With Deal To Make Cabs AccessibleLaw360, December 6, 2013

Advocates for the Disabled Seek Outside Expert to Examine NYC Disaster-Response ProceduresNew York Law Journal, March 12, 2013

Taxi Drivers Celebrate Legal TriumphNew York Taxi Workers Alliance, December 5, 2012

MSR Truce With Marriott Removes Ch. 11 RoadblockLaw360, February 12, 2012

Sheppard Mullin Assists Sudanese Activist Win AsylumNew York Law Journal, February 10, 2012

Facebook E-Discovery Ruling Only Tip Of The IcebergLaw360, June 8, 2010

Apple Is Said to Face Inquiry About Online MusicNew York Times, May 25, 2010

Speaking Engagements

Maintaining the Attorney-Client Privilege (CLE for private parties)

Antitrust Compliance (CLE for private parties)

Managing a Cartel Investigation (CLE for private parties)

"Back to the Future: Revisiting Class Certification in In Re: Visa Check/MasterMoney AntitrustLitigation Under the Standards Enunciated in In Re: Initial Public Offering Securities Litigation,"New York State Bar Association Antitrust Law Section Annual Meeting, January 26, 2012

Events

ACC-GNY Seminar & Cocktail ReceptionRetail Practice Group CLE: Best Practices for Retail CounselApril 29, 2015

Facing a Blizzard of Legal Challenges as In-House CounselSpring 2015 New York Fashion WeekFebruary 17, 2015

Who You Calling An Amateur? Legal Perspectives on the NCAA's Amateurism RulesSeton Hall University School of Law -- Room 373; One Newark Center; Newark, New Jersey, April20, 2011

Labor & Employment Law Update: 2010 Year in ReviewW New York, November 10, 2010

Litigating in the Social Networking EraTeleconference 1:00 - 2:30pm, June 15, 2010

Social Networking Websites: The Emerging Litigation ToolStrafford Publications, Inc., November 11, 2009

Memberships

Member, President's Committee on Access to Justice, New York State Bar Association

Hotel Business Review, Editorial Board Member 2009 and 2010

Member, Antitrust Law Section, New York State Bar Association

Member, Class Action Committee of the Antitrust Law Section, New York State Bar Association

American Bar Association, Section of Antitrust

New York State Bar Association

Theodore C. MaxPartner

30 Rockefeller PlazaNew York, NY 10112

T: 212.653.8702F: 212.655.1712tmax@sheppardmullin.com

Practices

Entertainment, Technology,and Advertising

Intellectual Property

Litigation

Industries

Emerging Growth/VentureCapital

Fashion, Apparel andBeauty

Education

J.D., New York UniversitySchool of Law, 1983, Editor-in-Chief, New YorkUniversity Review of Lawand Social Change, WonNYU Moot CourtCompetition, MendesHerschmann Prize

B.A., Hobart College, 1980,summa cum laude, highhonors, Rhodes ScholarFinalist, Student Trustee

Theodore C. Max is a member of the Entertainment, Technologyand Advertising and Intellectual Property Practice Groups in theNew York office, where he focuses on counseling clients onintellectual property issues and litigation. He is co-leader of thefirm's Fashion and Apparel team. Mr. Max combines his skill andexperience as a trial attorney with his knowledge of copyright,trademark and intellectual property law in servicing the firm'sdiverse clientele.

Mr. Max has counseled clients on and litigated numerous casesinvolving issues on the cutting edge of copyright and trademark law.He has assisted clients in identifying, protecting and preserving theirintellectual property assets, including seeking registration of rightsin the United States and internationally and taking action againstinfringements of copyrights, trademarks and trade dress. He alsohas experience developing and implementing anti-counterfeitingprograms and pursuing civil and criminal enforcement remedies. Mr.Max has actively litigated intellectual property issues, as well aslicensing and franchise disputes, and the rights of publicity andprivacy. He successfully has represented clients in all types of civillitigation, including alternate dispute resolution proceedings andmediation, trials and appeals.

Honors

Leading Trademark Professional, World Trademark Review, 2015

Intellectual Property, Legal 500, 2013, 2014

New York Super Lawyer - Intellectual Property Litigation, SuperLawyers, 2008-2014

Named as one of the "Legal Elite Litigation List," Avenue Magazine,2011

Experience

He has counseled representatives of some of the world's finest designers of fashion apparel andaccessories with respect to their intellectual property concerns and problems, including LouisVuitton Malletier, Emilio Pucci, Celine, Donna Karan, Kooba, Tarina Tarantino and Daryl K. Inaddition, he has assisted such rising stars in the fashion world as Peter Som and Rafe. He also hasextensive experience in litigating commercial disputes in New York state and federal courts.

Articles

Mr. Max has lectured widely and authored numerous publications.

Authored a chapter in the book, Fashion Law: A Guide for Designers, Fashion Executives &Attorneys, which is entitled "Celebrities and Fashion Models: Endorsement and PromotionAgreements."

"Coloring Outside the Lines in the Names of Aesthetic Functionality: Qualitex, Louboutin, and Howthe Second Circuit Saved Color Marks for Fashion," The Trademark Reporter, September/October2012

"Litigating Trademark And Copyright Cases In The Metaverse," The Metropolitan CorporateCounsel, January 25, 2012

"Tweet Me! - The Southern District of New York Answers Copyright Questions Raised by Twitter andTwitpuc Use," Terralex's Intellectual Property Newsletter, September 2011

"Congress Has Designs For Piracy Prevention Legislation," Daily Journal, August 9, 2011

"Charting A Safe Course In The Perfect Storm Of Consumer Privacy Laws," The MetropolitanCorporate Counsel, June 2011

Authored a chapter in the book, "Inside the Minds: New Developments in Evidentiary Law in NewYork, 2011 ed.", Aspatore Publishing, April 2011.

"Trademarks in the Veldt: Do Virtual Lawyers Dream of Electric Trademarks?" The TrademarkReporter: The Law Journal of the International Trademark Association, Vol. 101, No. 1, January-February, 2011.

Project Runway: The Am Law Daily Edition, The AmLaw Daily, February 19, 2009

House Okays Watered Down PRO IP Act, World Law Media, June 1, 2008

Designer Hotels Are In Fashion: But Care Should Be Taken To Avoid A Major Faux Pas, HotelExecutive.Com, May 1, 2008

When Copyright and Trademark Infringement Goes Online, New York Law Journal, October 29,2007

When Keywords Trigger Sponsored Links, Be Mindful of WhenU and the Split in the Circuits BeforeChoosing Your Forum Court, Bloomberg Law Reports, September 10, 2007

Authored a chapter in the book, Intellectual Property Assets in Mergers and Acquisitions, which isentitled "Acquisitions and Licensing of Famous Name Trademarks and Rights of Publicity in theUnited States."

Authored a chapter in the book, Handbook of Fashion Rights, which is entitled "IntellectualProperty Protection and Fashion in the United States."

"Total Recall: A Primer on a Drastic Form of Equitable Relief," published in The TrademarkReporter®, in May-June 1994

"Dilution Act May Limit Commercial Parodies," published in The National Law Journal

Contributed a chapter in the book, The New Role of Intellectual Property in CommercialTransactions, entitled "Available Remedies For Dispute Resolution in International and DomesticTrademark Licenses."

Fashion & Apparel Law Blog Posts

"Trending Information: The Connection Between Data Brokers and the Fashion Industry," July 24,2014

"International Safe Harbor Privacy Compliance: What You Need to Know," July 14, 2014

"Too Good To Be True: FTC’s Crackdown On L’Occitane’s Body Slimming Almond Extracts," July11, 2014

"Fur Flies and West Hollywood (“WeHo”) Fur Ban Is Upheld By Federal Court," July 3, 2014

"New Updated FTC Care Labeling Rules: 'Do’s and Don’ts,'" June 26, 2014

"Second Circuit Digs Its Heels Into Louboutin Dispute; Finds "Red Sole" Trademark Protectable,But Limited in Scope," September 19, 2012

Intellectual Property Law Blog Posts

"The Innovative Design Protection and Privacy Prevention Act: Will Design Protection Be In Voguein Congress?" September 1, 2010

"What Is the Jurisdictional Pre-Requisite for Copyright Litigation?" July 14, 2009

"Joseph Abboud Is Back: Personal Name Trademark Controversy Continues," July 13, 2009

"Second Circuit Resolves Split Between the Circuits Regarding Sale of Keywords to TriggerSponsored Links and "Use in Commerce" Under the Lanham Act," April 10, 2009

"Gibson's Patent Action Against Activision Hits Wrong Chord With Court In "Guitar Hero" Dispute:Summary Judgment Granted," April 10, 2009

"S.D.N.Y Holds eBay Not Liable in Closely Watched Trademark Case," July 14, 2008

Social Media Law Update Blog Posts

"How to Legally Protect Your Brand in the New Millennium," November 16, 2010

Speaking Engagements

"Designing a Greater System of Protection for Fashion: The Future of Fashion Law," New YorkUniversity School of Law, February 19, 2015

"Hot Topics for 2013: What You Need to Know to Avoid Fashion Jeopardy?" New York, February 13,2013

“IP Enforcement and Litigation 2011: Civil and Criminal Update” Practising Law Institute, March 30,2011

Events

ACC-GNY Seminar & Cocktail ReceptionRetail Practice Group CLE: Best Practices for Retail CounselApril 29, 2015

Facing a Blizzard of Legal Challenges as In-House CounselSpring 2015 New York Fashion WeekFebruary 17, 2015

How to Protect Your BrandThird Thursday Emerging Company Webinar Seriesvia WebEx, August 21, 2014

Crisis Management in the Fashion and Retail IndustrySheppard Mullin's Fashion Week SeminarFebruary 18, 2014

It's All About the Brand!New York Fashion Week Seminar - Fall 2013September 12, 2013

Branding Your Company in the World of Social Media, Instant Celebrity and Virtual RealityThird Thursday Emerging Company Webinar Seriesvia WebEx, July 18, 2013

Breakfast With Your Finance and Bankruptcy LawyersIntellectual Property Issues in Bankruptcy: Assumption and Assignment, Distinctions BetweenPatents, Copyrights and Trademarks, Distressed Acquisitions and How to Protect Your IPSheppard Mullin New York, June 11, 2013

How to Legally Protect Your BrandThird Thursday Emerging Company WebinarWebEx, November 17, 2011

Got GOTS?Sheppard Mullin, New York, June 28, 2011

How to Legally Protect Your Brand in the New MillenniumThird Thursday Emerging Company WebinarsWebEx, October 21, 2010

Digital Media Law Forum: Building Brands In a Digital WorldSilicon Valley Bank, 3005 Tasman Dr, Santa Clara, CA 95054, September 22, 2010

Memberships

Chair, Publications Committee, International Trademark Association

Past Editor-in-Chief, The Trademark Reporter®, 1999-2001

Previous United States Original Articles Editor

Previous International Original Articles Editor

SubCommittee Chair, "International Annual Review of Developments in Trademark Law andPractice," The Trademark Reporter®

Member, Copyright and Trademark Committee of the Entertainment and Sports Law Committee ofthe New York State Bar Association and the Federal Bar Council

Member, Copyright and Trademark Committee of the Entertainment and Sports Law Committee,New York State Bar Association and the Federal Bar Council

Bryony Cain Associate Direct: +44 (0)20 7982 6533 Tel: +44 (0)20 7415 6000 Fax: +44 (0)20 7415 6111 bryony.cain@twobirds.com

Bryony brings in-depth knowledge of the media, technology and communications industries to clients facing UK or international commercial litigation.

Bryony is an associate in our Dispute Resolution Group, based in London, specialising in commercial litigation and technology and media law.

She advises our clients on complex, fact-heavy commercial disputes, with a primary focus on disputes relating to the technology, media and fashion sectors. She acts for both corporate clients (including IT and telecommunications providers, major film and broadcasting organisations, and internet corporations) and individuals on disputes spanning the commercial spectrum.

Her experience includes advising on contractual disputes, warranty and fraud claims, agency issues, minority shareholder actions, partnership and joint venture disputes, judicial review proceedings and defamation and privacy actions. She is also experienced in advising on pre-action steps such as freezing injunctions, search orders and third party disclosure orders, and has advised clients in relation to cyber-security breach responses and internal investigations. Bryony has a particular focus on international disputes so can offer valuable insights into questions of jurisdiction and the management of cross-border evidence-gathering.

She holds a B.A. Hons (Law) from Cambridge University and the LPC qualification from the Oxford Institute of Legal Practice.