Usually toward the end of any negotiation, the business people will say, “We’re down to legal issues. Let’s go to dinner and let the lawyers figure the rest out.”
Ask any lawyer who has been left behind what this discussion will include, and the response will universally be “indemnification” – indemnification for the usual parade of horribles and cataclysmic events that haunts the mind of every licensee’s lawyer. Given the potential importance of this topic to your client, as well as the late hour at which such discussions often occur, this paper will review the subtle – and critical – distinction between “defend and settle” and “indemnification.”
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