A New York Supreme Court justice on Friday barred daily fantasy sports sites DraftKings and FanDuel from doing business in New York, reports UPI.

Justice Manuel Mendez ordered the country’s two biggest fantasy sports companies to stop taking bets in New York after the state’s attorney general, Eric Schneiderman, argued their operations were illegal gambling.

“New York State penal law does not refer to ‘wagering’ or ‘betting,’ rather it states that a person, ‘risks something of value,'” Mendez wrote. “The payment of an ‘entry fee’ as high as $10,600 on one or more contests daily could certainly be deemed risking ‘something of value.'”

Other states are considering similar action against the online fantasy sports sites.

Read the article.

A recent Delaware Court of Chancery decision illustrates why anti-reliance and exclusive representations contractual language must not be overlooked as meaningless “boilerplate,” writes Brad Reid, Senior Scholar, Dean Institute for Corporate Governance and Integrity, Lipscomb University.

“Additionally, an integration clause means that the written agreement is all that one should rely upon,” he writes in the article. “An individual should not slip into a comfortable feeling of having a personal relationship in a commercial transaction. It is important to recall that modern business involves arms’ length transactions requiring a high degree of due diligence.

The case is Prairie Capital III, L.P. v. Double E Holding Corp.

Read the article.

By Stephen Pinson
Scott & Scott LLP

The limited liability company “LLC” is a popular way to structure a new business venture in Texas. The primary reason for forming an LLC is to obtain protection from personal liability for the owners of the business.

Owners who are planning to form new business entities in the future may want to consider a Texas Series LLC. A Series LLC is helpful for investors who would like to pool their assets into several classes of investment interests, such as those used in corporate restructurings and buyouts, with an added extra layer of protection from liability. The unique aspect of the Series LLC is that it allows the individuals forming it to create several distinct entities and receive all of the benefits of multiple Limited Liability Companies, with only one filing. In essence, the LLC acts as an umbrella where several series of LLCs are insulated from liability and tax protection from the others.

However, the hurdle in enforcing this added layer of liability protection is found at creation of the entity. Pursuant to the Texas Business Organizations Code, to form such an entity, there must be a “notice of limitation” in two documents: (1) the certificate of formation, and (2) the company agreement. But what exactly, needs to be included in the “notice of limitation” for this added layer of liability protection within each series of the LLC to manifest itself?

The Texas Business Organizations Code Section § 101.602 describes the language of the “notice of limitation” in detail, and it requires that the following language be included verbatim: (1) the debts, liabilities, obligations, and expenses incurred, contract for, or otherwise existing with respect to a particular series shall be enforceable against the assets of that series only, and shall not be enforceable against the assets of the limited liability company generally or any other series; and (2) none of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the limited liability company generally or any other series shall be enforceable against the assets of a particular series.

One benefit of the Texas Series LLC is increased privacy and separation from public disclosures. Pursuant to the Texas Business Organizations Code the only document that requires modification in creating a new series is the company agreement. No public documents are filed with the Secretary of State when a new series is created or dissolved. This increases client privacy and allows for the creation of what is essentially a new quasi-separate business entity for each series, which allows for separation of ownership interests, investments, and possible voting and no-voting interests similar to a corporation but with the advantage that these can change with fluidity.

Consequently, if the Texas Series LLC is not formed correctly, or is not delineated in the operating agreement in compliance with Texas Business Organization Code, there are risks that the extra layer of liability protection between the series will not be enforceable. It’s always best to consult an experienced attorney in order to understand the risks involved.

Termination rights are a crucial and frequently negotiated aspect of complex commercial agreements, write Peter M. Watt-Morse and Glen Rectenwald in the Morgan, Lewis & Bockius blog, Sourcing @ Morgan Lewis.

In addition to providing protection in the event that a vendor defaults, the ability to walk away from negotiations regarding modifications or renewals can also be a powerful tool for creating negotiating leverage,” they explain. “Flexible termination options, termination assistance, and other termination rights can manage the risks of transitioning to a new provider and provide credible alternatives for future negotiations.”

Read the article.

A China-centric written contract is an effective tool for doing businesses in or with China, explains Steve Dickinson of Harris Moure in an article published on the China Law Blog.

“A first step in creating this effective tool is to carefully follow the rules for execution,” the explains. “Chinese courts are bureaucratic and formalistic. Make use of that tendency so that you can prevail. Don’t blunt the edge of your instrument with sloppy execution procedures. A casual approach to execution is neither appropriate nor effective for China. A failure to follow China contract law formalities can lead to a Chinese court not enforcing your contract.”

“Chinese courts are hyper-technical when working with written documents. If there is any surface flaw, a party will object to the authenticity of the document and then force the party offering the document to prove its authenticity,” he writes in the article.

Read the article.

Chris Brown, founder of Kansas City law firm Venture Legal, offers seven quick factors to review in every contract to help you protect your interests.

In the article published on SiliconPrairieNews.com, he starts his discussion with the importance of properly naming the parties. “The first thing you need to do is make sure the parties are identified correctly. If you are a business, then make sure you are signing the contract on behalf of the business and not yourself individually.”

He continues the discussion with the issues of naming the parties, obligations, payment terms, termination rights, intellectual property, confidentiality, and miscellaneous terms.

Read the article.

As the market shifts from on-premises to cloud deployment, the risk of getting locked into a disadvantageous cloud contract increases for three main reasons, according to a report by  R. “Ray” Wang with Constellation Research.

“Cloud apps have dominated new license sales in the enterprise applications market in recent years.” he writes. “Constellation estimates that 93 percent of all new enterprise software license sales offer a cloud deployment option.  In the cloud model, buyers do not own the software license. Instead, the software is leased and accessed, while the purchaser owns the data.”

He discusses the three main reasons behind the risk of getting locked into a vendor.

Read the article.

U.S. News & World Report has recognized DLA Piper  as the 2016 Law Firm of the Year in Franchise Law in the newest edition of U.S. News – Best Lawyers “Best Law Firms.” The firm also received a tier-one ranking in franchise law.

“Law Firm of the Year” designations are based on law firms’ overall performance in a given practice area and represent a significant showing in the 2016 U.S. News – Best Lawyers® “Best Law Firms” research, which incorporates client and peer feedback into evaluations of more than 50,000 lawyers in an annual survey.

DLA Piper has received several honors regarding franchise law this year. Chambers Global recognized the firm as the only tier-one franchise law firm, Franchise Times magazine selected 10 lawyers from the firm’s Franchise and Distribution practice as 2015 Legal Eagles and Best Lawyers honored 13 DLA Piper attorneys as 2016 Best Lawyers in America in the franchise law category.

DLA Piper is a global law firm located in more than 30 countries throughout the Americas, Asia Pacific, Europe and the Middle East.

California-based Kite Pharma, Inc. (Kite) has entered into a worldwide research and license agreement with Washington-based Alpine Immune Sciences, Inc. (AIS), a privately‐held biotechnology company, to discover and develop protein‐based immunotherapies targeting the immune synapse to treat cancer.

In a release, the company said AIS will grant Kite an exclusive license to two programs from its transmembrane immunomodulatory protein (TIP™) technology, which Kite plans to further engineer into chimeric antigen receptor (CAR) and T cell receptor (TCR) product candidates. Under the terms of the collaboration, Kite will make an upfront payment to AIS of $5 million and additional payments to support AIS’ research. AIS will be eligible to receive milestone payments based upon the successful achievement of pre‐specified research, clinical, and regulatory milestones totaling $530 million plus low single digit royalty payments on product sales.

Latham & Watkins LLP counsel Geoff Kuziemko, based in the firm’s Silicon Valley office, represented Alpine Immune Sciences in the licensing agreement. Silicon Valley partners Patrick Pohlen and Brian Cuneo advise AIS on corporate matters.

The release continues:

“The field of immuno‐oncology has the potential to significantly improve the outcome of patients with cancer,” said Arie Belldegrun, M.D., FACS, Chairman, President and Chief Executive Officer of Kite. “We believe the ability of AIS’ TIP™ technology to modulate the immune synapse can be incorporated into engineered T cell therapies to advance CAR and TCR product candidates into multiple tumor types. This collaboration is another example of Kite’s continuing commitment to advancing our pipeline through transformative technologies grounded in innovative science.”

Under the terms of the collaboration, Kite will make an upfront payment to AIS of $5 million and additional payments to support AIS’ research. AIS will be eligible to receive milestone payments based upon the successful achievement of pre‐specified research, clinical, and regulatory milestones totaling $530 million plus low singledigit royalty payments on product sales. Kite will receive an exclusive, worldwide license to research, develop and commercialize engineered autologous T cell therapies incorporating two programs coming from the AIS platform.

“AIS was established with a team of experienced scientists to capitalize on our keen understanding of immunology and protein engineering,” said Mitchell H. Gold, M.D., Executive Chairman. “At AIS, we have a robust discovery platform to identify molecules capable of directly modulating the immune synapse. We look forward to working with Kite, a company that uniquely understands the complexities surrounding cancer biology.”

About Kite Pharma, Inc.

Kite Pharma, Inc., is a clinical‐stage biopharmaceutical company engaged in the development of novel cancer immunotherapy products, with a primary focus on engineered autologous cell therapy (eACT™) designed to restore the immune system’s ability to recognize and eradicate tumors. Kite is based in Santa Monica, CA.

About Alpine Immune Sciences, Inc.

Alpine Immune Sciences, Inc. is a privately‐held biotechnology company focused on developing protein‐based immunotherapies that harness the body’s own immune system to target cancer and autoimmune disease. AIS has developed a proprietary variant immunoglobulin domain (vIgD™) platform to enhance or diminish an immune response. The vIgD™ platform, unlike other therapeutic approaches in development or available commercially that address a single target, is designed to interact with multiple targets in the immune synapse. AIS has also developed a transmembrane immunomodulatory protein (TIP™) technology, based on the vIgD™ platform, for direct applications with engineered T cell therapies to potentially improve their efficacy and persistence. AIS was launched in 2015 with series seed financing from Alpine BioVentures and is headquartered in Seattle, WA. Alpine BioVentures is a Seattle‐based healthcare venture firm led by Dr. Mitchell H. Gold, Managing Partner, a long‐time executive and pioneer in the immuno‐oncology area, and Jay Venkatesan, Managing Partner, a veteran investor in the biotechnology space.

Kite Pharma, Inc. Forward‐Looking Statements This press release contains forward‐looking statements for purposes of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The press release may, in some cases, use terms such as “predicts,” “believes,” “potential,” “proposed,” “continue,” “estimates,” “anticipates,” “expects,” “plans,” “intends,” “may,” “could,” “might,” “will,” “should” or other words that convey uncertainty of future events or outcomes to identify these forward‐looking statements. Forward‐looking statements include statements regarding intentions, beliefs, projections, outlook, analyses or current expectations concerning, among other things: the ability to research and develop TIP™ technology and to engineer a TIP™ into CAR and TCR product candidates; the success of such product candidates and their ability to overcome the inhibitory mechanisms present in the tumor microenvironment; and the ability to advance Kite’s pipeline through new technologies. Various factors may cause differences between Kite’s expectations and actual results as discussed in greater detail in Kite’s filings with the Securities and Exchange Commission, including without limitation in its Form 10‐Q for the quarter ended June 30, 2015. Any forward‐looking statements that is made in this press release speak only as of the date of this press release. Kite assumes no obligation to update the forward‐looking statements whether as a result of new information, future events or otherwise, after the date of this press release.

The International Association for Contract & Commercial Management will present a free, three-week online course offering ideas and insights into the world of business and trading relationships. This course will be a repeat of an April event.

Starting on Nov. 9, “the three week course will help you to better understand what is involved in commercial business relationships, and the process of managing contractual agreements,” IACCM says on its website. “You will learn how a person’s or organization’s objectives – and those of their customers and suppliers – can be achieved in an effective way, without threat or failure.”

Three modules, 5-10 minutes each, are released each week. They are recorded so participants can listen at their convenience.

Topics include:

• Relationship fundamentals; the things that can go right or wrong in commercial relationships
• The rules that govern public and private sector procurement
• The complexities of supply chains and networks that are a feature of many contracts
• How to manage interdependencies and the needs of multiple stakeholders
• Judgment and the data needed to inform it

Register for the course.

The latest of a line of recent cases in which the U.S. Supreme Court has weighed the enforceability of class action waivers in arbitration agreements was before the court on Oct. 6, 2015, when the court heard oral argument in DirecTV, Inc. v. Imburgia, et al., No. 14-462, reports James A. McKenna of Jackson Lewis.

“These decisions almost uniformly have favored arbitration, and many employers have adopted and successfully utilized arbitration agreements containing class action waivers,” he explains.

DirecTV’s customers signed agreements requiring claims relating to the agreement or to the company’s service to be decided by binding arbitration on an individual basis. “Arbitration on a class basis was specifically prohibited. At the time Amy Imburgia signed the agreement, the controlling California law was the “Discover Bank rule” announced by the California Supreme Court in 2005. Under the Discover Bank rule, almost all consumer arbitration agreements containing class action waivers were deemed unconconscionable and, therefore, unenforceable,” according to the article.

Read the article.

Global Jet Capital, a provider of financing solutions for large-cabin, long-range private jets, has agreed to purchase the aircraft lease and loan portfolio of GE Capital Corporate Aircraft in the Americas representing approximately $2.5 billion of net assets.

Latham & Watkins LLP advised Global Jet Capital on the transaction with a corporate team led by Washington, D.C. partners Daniel Lennon and Nicholas Luongo with associates J. Cory Tull, Rohith Parasuraman, Mariclaire Petty and Mitchell London.  Advice was also provided by New York partner David Raab with associate Matthew Dewitz on tax; New York partner Steve Betensky with associate Tiana Hertel on transition services; Washington, D.C. partner David Della Rocca with associate Matthew Conway on employee benefits; Washington, D.C. partner Jeffrey Chenard and New York partners Graeme Smyth,  Kevin Fingeret and  Larry Safran on finance; Washington, D.C. partner Marc Williamson and Brussels partner Hector Armengod with Washington, D.C. counsel Sydney Smith on antitrust; and New York partner Alan Avery with associate Pia Naib on banking.

Shawn Vick, Executive Director of Global Jet Capital, said, “We are investing heavily in growing the business both organically and through strategic acquisitions such as this one with GE. This is a prime example of our industry expertise and investment capital coming together to evaluate and identify an opportunity to expand the business in a disciplined, carefully measured way.”

He added, “This is a remarkable portfolio of corporate aviation assets, and this investment underlines our confidence in the long-term growth prospects of the large cabin, long range private jet market. The price point of these aircraft range between $25 and $75 million on average, and corporate users and high net worth individuals will seek competitive financing solutions rather than allocate their own cash resources which are better invested in their own businesses.”

The release from Global Jet Capital continues:

In building the Corporate Aircraft portfolio, GE Capital has adhered to the most comprehensive underwriting and asset evaluation practices as well as industry-leading documentation and collateral securing processes.

“We are pleased to sell our Corporate Aircraft financing portfolio to Global Jet Capital, a buyer that is fully committed to investing and growing the business,” said Keith Sherin, GE Capital Chairman and CEO. “We know our customers will benefit from the combined strength and expertise of the Global Jet Capital team and will continue to receive the high level of service they have come to expect from us,” he added.

Global Jet Capital, which was launched last year, is capitalized by three global investment firms – GSO Capital Partners, a Blackstone company in partnership with Franklin Square Capital Partners; The Carlyle Group; and AE Industrial Partners.

The company’s current management team and executive committee is composed of leaders from business jet manufacturers, maintenance and service providers and leading financial institutions who have served the private aircraft industry for a combined 200-plus years and have completed over 3,500 aircraft transactions. As part of this transaction, the GE Capital Corporate Aircraft team will join the Global Jet Capital organization.

Global Jet Capital was advised by Deutsche Bank Securities Inc., BofA Merrill Lynch and Citi together with Latham & Watkins LLP, Clifford Chance US LLP and Kirkland & Ellis LLP as legal advisors. Closing is contingent upon the completion of customary closing conditions and is expected to occur in stages over the next several months.

Allergan plc, a leading global pharmaceutical company, announced that it has successfully completed the acquisition of Kythera Biopharmaceuticals, Inc., a company focused on the discovery, development and commercialization of novel prescription products for the medical aesthetics market. Allergan acquired Kythera in an all-cash transaction valued at approximately $2.1 billion.

The acquisition of Kythera adds KYBELLA^® (deoxycholic acid) injection, the first FDA approved non-surgical injection for improvement in the appearance of moderate to severe submental fullness, commonly referred to as double-chin, in adults. In a release, the company said KYBELLA is administered by a trained physician who injects the product under a patient’s chin to destroy fat cells, improving the appearance of the patient’s chin area. Up to six treatments may be administered per patient no less than one month apart, and each in-office treatment session lasts approximately 20 minutes.

“The completion of the Kythera acquisition is an important moment for Allergan and our world-class aesthetics business, adding highly differentiated products and development programs that enhance our product offering to global customers and their patients,” said Brent Saunders, CEO and President of Allergan.  “KYBELLA is a game-changing product in facial aesthetics, and builds on our leadership in the facial aesthetics market. We now can provide a broader range of market-leading aesthetics products to our customers, with KYBELLA joining BOTOX^® Cosmetic, JUVEDERM^® XC, JUVEDERM VOLUMA® XC and LATISSE^®. KYBELLA, a product I have been treated with myself, is also a key entry point for expanding the use of our aesthetics products in men, a growing market opportunity in both the U.S. and around the world.”

Latham & Watkins LLP represented Kythera in the transaction with a corporate deal team led from the firm’s Silicon Valley office by partners Alan Mendelson, Mark Roeder and Josh Dubofsky, with associates John Harrison, Deeptha Mathavan, Benjamin Liss, Owais Mahesri and Albert Yeh. Advice was also provided on public company representation by Silicon Valley partner Brian Cuneo, with associates Saied Pinto and Alexander White; on antitrust matters by San Francisco partner Karen Silverman and Washington, D.C. counsel Sydney Smith; on benefits and compensation matters by Silicon Valley partner James Metz and associate Ashley Wagner; on regulatory matters by Washington, D.C. partners John Manthei and Jennifer Archie, with San Francisco counsel Betty Pang and Washington, D.C. associates Elizabeth Richards, Susan Ebersole and Michael Dreyfuss; on intellectual property matters by Silicon Valley partner Judith Hasko and counsel Geoffrey Kuziemko; on tax matters by San Francisco partner Kirt Switzer and Washington, D.C. partner Nicholas DeNovio, with Washington, D.C. associate Sean FitzGerald and Silicon Valley associate Jessica Chen; and on litigation matters by Silicon Valley partner Patrick Gibbs, with associate Allison Davidson.

Reed Smith has posted a discussion on drafting and negotiation commodities contracts, with a focus on Chinese counterparties with emphasis on successful enforcement in China.

Simon Jones, William J.G. Barber, Calvin Chan, Ivan Chiang  wrote the article.

“It is inevitable that some commodity trades end in dispute, particularly in current markets where prices are generally low and have been falling. This may happen in any jurisdiction, although this article focuses on China and how you can minimise risks relating to enforcement,” the authors wrote in the introduction.

Read the article.

In a case involving “clickwrap” and “signwrap” agreements, the Eastern District of New York denied a motion to dismiss and compel arbitration filed by an in-flight wifi provider, according to Buckley Sandler LLP in its InfoBytes blog and posted on JDSupra.

“At issue in the motion to dismiss was the enforceability of two separate agreements used to enroll customers, and in particular terms in those agreements related to mandatory arbitration and exclusive venue, which the defendant sought to invoke,” the firm wrote.

Plaintiffs argued that the agreements should not be enforced because the website design was intended deliberately to hide terms and were never seen or agreed to by them. The court denied the defendant’s motion to dismiss and compel arbitration, concluding that the agreement was unenforceable.

Read the article.

The national law firm of Quarles & Brady LLP has announced that Robert Stracks has joined the firm’s Chicago office in its Business Law Practice Group.

Stracks assists broker-dealers in the municipal securities industry with respect to regulatory matters and municipal securities offerings. Prior to joining Quarles & Brady LLP, he spent more than 40 years as inside and outside counsel to several municipal securities dealers with full responsibility for legal and compliance matters, including general supervisory and operating procedures, primarily disclosure and due diligence matters with respect to new offerings, continuing disclosure matters, municipal advisor regulation, supervisory controls, annual compliance reviews and continuing education programs.

He received his law degree, magna cum laude, from Harvard Law School and his bachelor’s degree, with distinction, from the University of Michigan.

About Quarles & Brady LLP
Quarles & Brady is a full-service AmLaw 200 firm with more than 475 attorneys offering an array of legal services to corporate and individual clients that range from small entrepreneurial businesses to Fortune 100 companies, with practice focuses in health care and life sciences, business law, labor and employment, real estate, data privacy and security, and complex litigation. The firm has offices in Chicago; Indianapolis; Madison; Milwaukee; Naples, Florida; Phoenix; Scottsdale; Tampa; Tucson; and Washington, D.C. Additional information can be found online at quarles.com, as well as on Twitter, LinkedIn, and Facebook.

Non-disclosure agreements or “NDAs” are often the first contract entered into by parties desiring to do business together, but it is important not to rush to sign a form NDA just to get the conversation started, write Emily R. Lowe and Glen Rectenwald on a Morgan Lewis blog.

They describe key provisions and potential pitfalls that should be considered when negotiating NDAs, including mutuality, requirements to label confidential information, restrictions on use and disclosure, definition and standard exclusions, residuals clause, disclaimer of consequential damages, and term.

Read the article.

When an organization is contemplating a large commercial agreement or outsourcing arrangement covering global operations across multiple service locations, subsidiaries, or affiliates, it should consider the advantages and potential pitfalls of using a single global agreement versus local (or “site-specific”) agreements to govern the transaction, writes Emily R. Lowe in an article published in a Morgan Lewis blog.

She outlines the benefits of global agreements and of site-specific agreements and discusses some potential pitfalls.

Lowe also describes effective general approach that can benefit from the advantages of using a global agreement while avoiding its potential pitfalls: entering into a single global agreement applicable to all services from a single service provider that either requires or permits (as appropriate) the divisions, subsidiaries, or affiliates of the parties to enter into separate local agreements.

Read the article.

Diodes Inc. (Nasdaq: DIOD) and Pericom Semiconductor Corp. (Nasdaq: PSEM) have entered into an Agreement and Plan of Merger that provides for the acquisition of Pericom by Diodes in an all-cash transaction valued at approximately $400 million.

The boards of both companies have approved the transaction, which is still subject to approval by Pericom’s shareholders, as well as other customary closing conditions and regulatory approvals. It is expected to close in the fourth quarter of 2015.

Latham & Watkins represents Pericom Semiconductor in the transaction with a corporate team led from the firm’s Silicon Valley office by partner Tad Freese, with associates Chad Rolston, Benjamin Liss and Jeremy Gibb. Advice has also been provided on intellectual property matter by partner Anthony Klein and associates Isabel Chon and Nicole Fritz; on tax matters by partner Grace Chen and associate Jessica Chen; on employee benefits matters by partner Jay Metz and associate Lilly Fang; and on antitrust matters by partner Joshua Holian. All of the attorneys are based in Silicon Valley, except for Grace Chen and Joshua Holian who are based in San Francisco.

Every foreign business person who enters into a contract with a Chinese company needs to consider a fundamental question: how will the contract be enforced, writes Steve Dickinson on the China Law Blog, published by Harris & Moure. in the article, he discusses how to be able to pursue a claim successfully against a Chinese company.

“First, there must be a written contract between the parties, executed by both parties in accordance with the requirements of Chinese law,” he writes.

“Second, the contract must be enforceable in China. As a practical matter, no Chinese court will enforce a foreign judgment and it can be quite difficult to get them to enforce a foreign arbitration award.”

Read the article.