Manufacturing

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Phillips Lytle understands the broad array of legal issues confronting manufacturers today. We recognize that manufacturers must contend not only with the same legal issues faced by other organizations, but must also learn to manage the many unique legal issues that can profoundly impact the way in which they conduct business. Our Manufacturing Team routinely assists manufacturers in areas such as corporate, litigation, employee benefits and labor and employment, as well as the following:

Sales and Distribution                                                           

  • Commercial sales contracts
  • Joint ventures
  • Marketing and trademarks
  • Product liability insurance
  • Sales representative agreements
  • Service contracts
  • Shipping and logistics
  • Subcontracting
  • Value-added reseller (VAR) and distribution agreements

E-Commerce  

  • Business-to-business (B2B) and business-to-consumer (B2C)
  • Electronic contracting

Strategic Sourcing and Procurement                        

  • Alternative dispute resolution
  • Commercial contracting
  • Contract administration
  • International arbitration
  • Management of the request for proposal (RFP) process
  • Outsourcing
  • Strategic partnerships
  • Supply agreements

Regulatory Compliance

  • Anti-trust regulation
  • Import/export controls
  • Product labeling
  • Securities and Exchange Commission (SEC) reporting
  • Traceability

Protection of Intellectual Property

  • Confidentiality agreements
  • Patents
  • Technology licensing
  • Trade secret protection

Health Safety and Environmental (HSE)

  • Clean Water Act (CWA) and Clean Air Act (CAA)
  • Environmental Protection Agency (EPA)
  • Occupational Health and Safety Act (OSHA)
  • Resource Conservation and Recovery Act (RCRA)
  • State laws and regulations
  • Toxic Substances Control Act (TSCA)

Our clients include small, local manufacturers and startups, as well as some of the largest manufacturing companies in the world. Our attorneys work directly with company officers and other professionals to maximize efficiencies in the delivery of legal services.

COMMERCIAL SALES CONTRACTS AND SERVICE AGREEMENTS

We understand that negotiating agreements with customers can be challenging, especially in today’s competitive environment. Having worked with clients in a broad array of industries, we have the expertise to handle even the most difficult and delicate situations. Whether you’re selling a product, providing a service, or both, we help clients reach fair agreements with their customers that won’t jeopardize any mutually beneficial relationships. From commercial sales contracts and service agreements, to terms and conditions, purchase orders and bailment and tooling agreements, we have the experience to get the job done.

Some of the areas in which we have helped clients in the commercial contracting process:

  • Choice of law provisions
  • Delivery, risk of loss and title passage
  • Dispute resolution
  • Excusable delays/force majeure
  • Guarantees and liquidated damages
  • Indemnity clauses
  • Limitations of liability
  • Material defaults and termination provisions
  • Product and service warranties

HEALTH SAFETY AND ENVIRONMENTAL (HSE)

Our Manufacturing Team offers expertise in many areas, including workplace health and safety (OSHA) compliance, investigation defense and litigation, as well as compliance with state and

federal environmental statutes and regulations, including the Clean Water Act, Clean Air Act and the Toxic Substances Control Act.

We regularly assist clients with the development and implementation of environmental compliance initiatives ranging from facility-specific environmental programs to company-wide environmental management systems. We focus on timely, cost-effective solutions, including the identification of all requirements, alternative compliance approaches, internal environmental audits, defense of criminal and civil enforcement proceedings and the handling of any administrative proceedings and appeals processes necessary to further a client’s goals.

Our knowledge and experience with compliance assistance, defense of enforcement proceedings, and administrative proceedings involving state and federal environmental requirements encompasses the following:

  • The Federal Clean Air Act and related state programs – compliance with emission standards and regulatory requirements for major and minor stationary sources and hazardous air pollutants; the registration and marketing of emission reduction credits; consent order negotiation and settlement of enforcement proceedings; and greenhouse gas regulations.
  • The Federal Clean Water Act and related state programs – applications for, and modifications to, state and federal discharge permits for point source and non-point source discharges and toxic water pollutants; storm water pollution prevention plans; and discharge compliance.
  • The Toxic Substances Control Act (TSCA) – applications for Environmental Protection Agency (EPA) approval, as they relate to the manufacturing of chemicals; labeling requirements and warnings; TSCA inventory and information disclosures; and the protection of confidential and proprietary information.
  • The Resource Conservation and Recovery Act (RCRA) – compliance with regulations governing the generation, treatment, storage and disposal of hazardous wastes; permits to operate hazardous waste and solid waste management facilities; and the implementation of corrective action requirements.
  • State and federal underground and aboveground storage tank regulations – the registration, testing and closure of tanks and storage facilities.
  • State solid waste generation, handling, transport and disposal laws – construction and demolition debris and beneficial use determination.
  • Compliance with local land use, zoning and licensing requirements for industrial and commercial activities.
  • State and federal asbestos regulations – asbestos identification, notifications and abatement requirements; OSHA and air emission requirements; and asbestos inventory and management plans.
  • State and federal hazardous substance and petroleum reporting requirements – community and worker right-to-know requirements; air and water release notifications; petroleum spill notifications; and reportable quantity assessments.
  • State and federal requirements for voluntary disclosure – assessment of state and federal regulatory requirements and compliance; development and presentation of voluntary disclosure; assessment of enforcement policies; and penalty mitigation.

PROTECTION OF INTELLECTUAL PROPERTY

Our attorneys have extensive experience in preparing and prosecuting patent applications in virtually all technical disciplines, including those involving mechanical and electrical fields, computer hardware and software, biotech, chemicals and medical devices.

We negotiate and draft technology transfer and related agreements employed in the commercialization of intellectual property, including research agreements, license agreements, material transfer agreements, joint venture agreements, confidentiality agreements and production agreements.

We have handled matters including international licensing arrangements with major research universities and large multinational corporations, as well as smaller customized arrangements between companies wishing to share research resources and marketing opportunities. The subject matter of these agreements covers all types of intellectual property, including trademarks, patents, trade secrets and copyrights, as well as various categories of technical arts, including genetically modified plants, discrete chemical compositions, medical devices, manufacturing processes, information technologies and multimedia works.

TRANSPORTATION AND LOGISTICS

We have represented and advised parties in global and domestic supply chains on a wide range of matters. In our work on behalf of freight forwarders and shippers, we have developed service contracts, participated in customer contract negotiations, and assisted with employment issues, including union contracts. We have also represented carriers and logistics providers in disputes with their customers and, when necessary, before governmental authorities. We counsel our clients with respect to the laws and treaties governing the transportation of freight and cargo to, from and within the United States. We have worked closely with companies and their logistics personnel in a broad spectrum of industries to address their delivery and freight shipment requirements, including over-the-road, rail, air and ocean freight services for domestic and international shipments.

We routinely address shipping and logistics questions related to contract law, agency relationships, loss or damage during shipment, shipment delays, insurance coverage, Incoterms®, bonding requirements, payment assurances, bills of lading, warehousing services, billing disputes, fuel surcharges, the Carmack Amendment, the Carriage of Goods by Sea Act (COGSA), import and export regulations, and sales taxes.

SALES REPRESENTATION

We assist clients in reviewing and negotiating legal agreements for the sale of products through commission arrangements. For sales representative organizations, we work to improve or develop sales representation agreements.

We have extensive experience in the law of agency and the business of sales representation. We have assisted manufacturers and producers of a wide range of products in managing the legal aspects of their alternative sales channels, including independent sales agents and manufacturer representatives. We also know this business from the perspective of the sales professional.

We work closely with companies to address the legal issues with unique application to the sales agency relationship, including independent contractor status, exclusivity rights, non-competition obligations, the ownership of customer-related information, intellectual property rights, indemnification obligations, insurance requirements, termination rights, and dispute resolution mechanisms.

Our extensive knowledge base allows us to efficiently understand and properly document the commission arrangement that works for the company and best avoid channel conflict and other compensation-related disputes.

DISTRIBUTORS AND RESELLERS

Our attorneys are well versed in the law of distribution and in the business aspects of product distribution. We represent distributors, dealers, value-added resellers, franchisors, franchisees, original equipment suppliers and original equipment manufacturers (OEMs) from a wide range of industries. We have significant experience in all important aspects of manufacturer-distributor relationships.

We assist our clients with distributor agreements and questions concerning the law and business of distribution, including licensing requirements, exclusivity, intellectual property rights, advertising, antitrust concerns, unfair competition, product liability, insurance coverage, product recalls, export restrictions and the termination of manufacturer-distributor relationships.

SUBCONTRACTING

We have worked with numerous manufacturing and construction clients on subcontracting arrangements, and we have considerable experience identifying and addressing liability and other issues that arise in the context of subcontracting arrangements. We have worked with manufacturers wishing to subcontract responsibility for production of all or a portion of their required output as well as with companies whose business is derived from performing entire or partial contract obligations for third parties. Among the issues we frequently address for our clients are the allocation of responsibility for contract performance, the responsibility for regulatory requirements in subcontracting arrangements, risk of loss considerations and contractual dispute resolution provisions.

EXPORTING AND IMPORTING

The world is getting smaller every day, but the need for information on how to move goods in and out of the country is ever-increasing. We assist our manufacturing clients in navigating the complex world of imports and exports, and help them avoid pitfalls, some of which can lead to dire consequences, like civil administrative penalties, debarment or even criminal sanctions. Our attorneys have helped small and large clients understand how to work within our country’s regulatory framework, and we have teamed with them to create internal compliance programs aimed at eliminating potential regulatory misses.

Areas in which we have assisted our manufacturing clients:

  • Anti-boycott regulations
  • Customs laws and regulations
  • Economic sanctions and trade embargoes
  • Export controls under the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR)
  • Foreign Corrupt Practices Act (FCPA)/anti-bribery

GOVERNMENT CONTRACTING

We have substantial experience working with clients participating in the government procurement process at local, state and federal levels. We work with our clients to identify the detailed requirements of submitting an appropriate bid in the government contracting process, as well as assisting clients in successfully complying with the numerous regulatory burdens imposed on government contractors under the Federal Supply Schedule (FSS), Federal Acquisition Regulation (FAR)/Defense Federal Acquisition Regulation Supplement (DFARS), the Buy American Act (BAA), the Berry Amendment and the Trade Agreements Act (TAA), among others. We have also worked with numerous clients on addressing governmental claims of non-compliance with the requirements of the performance standards of government contracts, and addressing such claims in the administrative process as well as in state and federal court.

STRATEGIC SOURCING AND PROCUREMENT

Our attorneys have many years of experience assisting sourcing and logistics teams of all sizes in a broad range of industries. In some instances, we support in-house legal resources. In other situations, we interact directly with procurement professionals. Our attorneys work to understand our clients’ specific needs, drawing upon extensive experience in advising buying teams, in order to provide cost-effective, complete solutions.

Our attorneys have drafted and negotiated commercial terms and conditions/contracts for a wide variety of goods and services, ranging from small one-off contracts to large multi-year agreements, in over 35 different countries.

We are familiar with the Uniform Commercial Code (UCC) and other subject matters that uniquely apply to the procurement function, such as Incoterms®, insurance, export controls, sales taxes, indemnification and arbitration.

We have significant experience with procurement-related legal issues, including the administration of complex purchase contracts; non-performance, on-time delivery, and contract pricing mechanisms such as most-favored nation pricing; audit rights; exclusivity provisions; antitrust complaints; insurance disputes; damages arising during shipment; force majeure events; product liability and product recalls; compliance with environmental and safety policies; compliance with IT and physical security policies; limitations of liability; indemnification; cover; and other remedies. We have resolved claims for non-performance and related damage issues from the buy-side through negotiation, arbitration, mediation and, where necessary, litigation. Our team is very familiar with various forms of arbitration and arbitration provisions.

Our clients rely on us to support their sourcing and logistics activities because of our extensive knowledge of the law and the business of procurement, our years of experience and our dedicated execution.

MANAGING THE RFP PROCESS

Whether a company is seeking business solutions from outside vendors or pursuing sales opportunities, a sound approach to the request for proposal (RFP) process is required. Our attorneys have extensive experience assisting clients in the development of comprehensive RFPs and in preparing appropriate responses to such requests. We can demonstrate how a knowledgeable approach to this preliminary step of the contract formation process can pay off in identifying the best solution and providing the appropriate framework for reaching the right agreement in the most efficient manner on terms and conditions that make good business sense.

Because the ultimate goal is a binding contract, it is important that each step in the RFP process be taken with knowledge of its impact on that contract. Involving an experienced business attorney in the process is critical. We work efficiently and effectively as a member of the procurement team. Our attorneys help clients properly define the scope of the project, manage the responses provided by the potential vendors, understand exceptions being taken in responses received, evaluate the vendor responses and select the preferred vendor, all with a view toward the resulting binding agreement.

We help companies understand the legal implications of the response, and we assist them in complying with the requirements of the solicitation to help them formulate the best possible proposal. Our objective is to succeed in obtaining a resulting contract on the appropriate terms and conditions.

OUTSOURCING

We represent a number of manufacturers who outsource all or a portion of their production needs to third parties, as well as several companies that derive all or a major portion of their business from outsourced manufacturing contracts. We have counseled numerous clients on the issues that arise when production is outsourced, including allocation of liability, intellectual property protection, tolling arrangements, and all aspects of outsourced manufacturing arrangements.

STRATEGIC PARTNERSHIPS

Today’s business environment may require non-traditional strategic relationships in order to achieve business objectives. Apart from mergers and acquisitions, there are many avenues available to leverage the strengths of two different organizations, and strategic alliances are tailored to meet specific challenges. They take various forms, including special purpose teaming arrangements, joint ventures, single source supplier relationships, development agreements, outsourcing contracts, co-branding or brand partnership arrangements, and exclusivity commitments. Companies often formally partner with their customers by guaranteeing results or calculating prices based on the customer experience, and they sometimes partner with suppliers by sharing costs, cost savings or other risks.

These relationships require a careful definition of the respective legal rights and responsibilities of the strategic partners. Special attention must be given to the impact of the law of agency on the relationship. In addition, they require careful planning to avoid unintended tax results, proper treatment of intellectual property rights, and thoughtful termination provisions.

Our attorneys have the knowledge and breadth of business and legal experience necessary to develop the proper framework for any strategic alliance, and to negotiate and document the contract that will evidence that relationship.

CONTRACT ADMINISTRATION

The Phillips Lytle Manufacturing Team has the scope of experience necessary to prepare contracts and draft contract terms that support the proper administration of performance obligations of each party and effective management of any performance deficiencies. Our objective is to develop a contract that anticipates potential problems and provides an appropriate framework for constructive responses to problems as they arise. This is accomplished through a reasoned approach to contract terms related to reporting obligations, performance milestones, payment terms, review and approval processes, minimum acceptable service levels (MASLs) and service level credits (SLCs), excused performance (force majeure events), change management, waivers, issue and escalation procedures, dispute resolution mechanisms, rights to cover, surcharges, and other remedies.

After the contract has been signed, it is not uncommon for the parties to quickly begin dealing with one another on a basis outside the contract terms that were originally negotiated between the parties. Such conduct can irreparably undermine rights to later enforce the contract as it was originally written. We work with clients and their teams to monitor compliance, assess variations, promptly identify defaults and properly respond.

ALTERNATIVE DISPUTE RESOLUTION

We have represented several manufacturing clients that seek to achieve a contract resolution or other commercial dispute outside of the traditional litigation context. We have had significant success in utilizing arbitration, mediation and other non-traditional methods to resolve business disputes, and we frequently counsel our manufacturing clients on the advisability of including an alternative dispute resolution mechanism in contract documents and negotiating ADR provisions best-suited to achieving their goals in the event of a business dispute.

INTERNATIONAL COMMERCIAL ARBITRATION

Arbitration and other forms of alternative dispute resolution in the context of international trade contain many unique features that differ from traditional U.S. practice. We have advised numerous clients in negotiating with foreign parties as to the selection of the arbitral body that will have jurisdiction over commercial disputes, choice of governing law, applicable international arbitration rules and the seat of the arbitration.

We frequently assist clients in negotiating sophisticated international arbitration agreements, and confirm that the client understands the significant rules affecting the conduct of arbitration in the forum selected. This ensures that their best interests are served in the arbitration process chosen.

Our experience advising and representing clients on international arbitration agreements involves several well-known arbitral bodies:

  • The Arbitration Institute of the Stockholm Chamber of Commerce
  • China International Economic and Trade Arbitration Commission
  • Dubai International Arbitration Centre
  • Hong Kong International Arbitration Centre
  • International Chamber of Commerce
  • International Centre for Dispute Resolution
  • London Court of International Arbitration
  • Singapore International Arbitration Centre
Manufacturing