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Sean's law practice is focused primarily on technology, internet, entertainment and media…
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Sean Hogle shared thisWikipedia is the source of truth for AI. Maybe you should think about contributing to their mission? Otherwise the AI might get it wrong. Humans should be the source of truth, not robots. https://lnkd.in/e9eYsD58
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Sean Hogle shared thisSean Hogle shared thisBehold the terror that is the Fair Credit Reporting Act Your HR manager asks you to sign off on a background check consent form. You read it, looks fine - though you barely notice the vendor's boilerplate disclaimer tucked at the bottom. You say "looks good." You just exposed your company to a class action. In Herbert v. Barnes & Noble (Cal. Ct. App. 2022), Barnes & Noble used a consent form that included a boilerplate B2B disclaimer from their background check vendor. Three sentences tacked onto the end. The kind of thing you'd easily miss. The Fair Credit Reporting Act requires that the disclosure to the applicant be in a document "consisting solely of the disclosure." That vendor disclaimer? It was something else. And that was enough. The court found sufficient evidence of a willful violation - opening the door to statutory damages of $100 to $1,000 per applicant, plus punitive damages and attorneys' fees. For a company processing thousands of applications, the math gets ugly fast. The lawyers of Redline break down exactly how this trap works, with sharp commentary on California's ban-the-box legislation and whether pre-employment background checks are even worth the trouble anymore. Redline (redline.net) is a dynamic collaboration environment for a select cadre of lawyers worldwide. Read the full thread: https://lnkd.in/gZ9MreX9
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Sean Hogle shared thisSean Hogle shared thisHow PayPal defanged the mass arbitration beast Class action waivers in consumer-facing terms of use/service have long been the first and best line of defense against entrepreneurial plaintiffs' counsel. But mass arbitration broke the old model. Claimants' firms figured out that filing thousands of identical demands forced companies to pay millions in per-case arbitration fees before a single hearing. PayPal's answer? A newly revised arbitration clause in its terms of service that turns every pressure point off. Before anyone can file, they have to mail a Notice of Dispute by certified mail, with an original handwritten signature. Then a 60-day negotiation window. Then a mandatory settlement conference the claimant must personally attend. Complete all of that or your arbitration never starts. If 25 or more similar claims come in from coordinated counsel, a bellwether process takes over. Each side picks 25 cases. Those run individually. Everyone else waits. And while they wait, JAMS will not assess or demand payment of fees for the remaining claims. The financial leverage that makes mass arbitration work is gone. What's more, the new terms apply retroactively to all disputes, including pending arbitrations filed under the old AAA rules. The opt-out window? 30 days from when you first accepted the user agreement -- which for most users closed years ago. Corporate nature finds a way. Redline (redline.net) is a dynamic collaboration environment for a select cadre of lawyers worldwide. Engage here: https://lnkd.in/gSTq3bCS
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Sean Hogle shared thisSean Hogle shared thisA Fortune 50 defense contractor just signed your 20-page tech license agreement. No redlines. No pushback. Not a single comment. Your client is thrilled. You should be, too. So why does something feel wrong? A Redline thread explores this unsettling scenario. Do they care what the terms say? Did the signatory lack authority to skip procurement and sign? Will Bigco demand concessions once the technology proves itself? The thread is a reminder that getting your template signed clean isn't always the win it appears to be. Sometimes the absence of negotiation can be a red flag. Redline (redline.net) is a dynamic collaboration environment for a select cadre of lawyers worldwide. Read the full discussion: https://lnkd.in/gEnRADdt
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Sean Hogle shared thisSean Hogle shared thisIf you experience a force majeure event under New York law, you're hosed Your vendor client's force majeure clause says "any cause beyond the reasonable control of the affected party." Sounds solid, right? Under New York law, it's a dead letter. A Redline thread breaks down six reasons why NY force majeure law is brutal for vendors and service providers. The short version: New York requires a specific list of qualifying events. Without one, courts won't excuse performance. Even with a list, the clause is limited to events of the same general kind as those listed - the catch-all at the end gets neutralized by ejusdem generis. What's more, the invoking party must show the event was unforeseeable, beyond its control, and rendered performance literally impossible. Not impractical. Not unreasonably expensive. Impossible. During the pandemic, vendors with generic "beyond reasonable control" language lost. Those with specific references to pandemics, epidemics, and government-ordered shutdowns fared better. California, by contrast, doesn't require a list, applies commercial impracticability instead of strict impossibility, and treats foreseeability more flexibly. The Redline thread includes a sharp exchange on whether the same analysis applies to SaaS uptime SLA exclusions, where the stakes are lower but the drafting patterns are similar. If your clients sell goods, services, or technology, the choice between New York and California governing law has real consequences for force majeure protection. Redline lays out exactly why. Redline is a dynamic collaboration environment for a select cadre of lawyers worldwide. Read the full analysis and join the discussion at redline.net: https://lnkd.in/gjg5a-Rb
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Sean Hogle shared thisSean Hogle shared thisYour counterpart's lawyer tells you the clause you want is unnecessary. Delaware law already implies it. Do you take their word for it? In Trifecta Multimedia Holdings v. WCG Clinical Services (Del. Ct. Ch. 2024), seller's counsel proposed requiring the buyer to exercise good faith efforts to hit earnout revenue milestones. Buyer's counsel pushed back: the implied covenant of good faith and fair dealing already supplies that obligation under Delaware law. No need for extra language. Seller's counsel dropped the request. When the buyer later failed to hit the milestones, the court refused to apply the implied covenant. The gap in the contract wasn't accidental. The parties had negotiated the term and rejected it. The integration clause blocked any attempt to prove they'd actually agreed on it outside the four corners. The lawyers of Redline walk through the case and the drafting trap, with sharp commentary from the community on how to handle this move at the bargaining table. Redline (redline.net) is a dynamic collaboration environment for a select cadre of lawyers worldwide. Engage here: https://lnkd.in/gmFzNmXC
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Sean Hogle shared thisSean Hogle shared thisYour SaaS client just got asked to guarantee AWS's compliance A standard enterprise data processing agreement lands on your desk. Buried in it: your client is "fully liable for the acts and omissions of its sub-processors." At the top of that sub-processor list sits Amazon Web Services. Your client is seven people and a seed round. It can't negotiate with AWS. It can't audit AWS. And it just got asked to answer for every compliance gap in AWS's infrastructure -- with no cap and no way to prevent the harm. The instinct is to shrug and sign. GDPR Article 28 says what it says, right? Not quite. The statute is narrower than the clause, and the gap between the two is where the drafting lives. A new post on Redline (redline.net) walks through seven strategies for building a force field around the startup: keeping exposure bounded and priced while honoring the regulation. It starts with what AWS actually promises in its own DPA (less than you think) and works through how to reconcile two documents that were never designed to fit together. Redline is a dynamic collaboration environment for a select cadre of lawyers worldwide. Learn more: https://lnkd.in/gtPekVcK
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Sean Hogle shared thisSean Hogle shared thisFeedback rights: the clause that eats your NDA Your client signed an NDA. Then the client signed the definitive agreement governing the parties' relationship (SaaS, Tech License, Prof Svs, etc). One of those agreements just ate the other. Buried in the definitive agreement is a feedback clause that declares that customer "suggestions, comments, or other feedback" are not confidential - and grants the vendor a perpetual, irrevocable, worldwide license to use them however it wants. Every time your client explains how a feature should work, describes a workflow, or suggests an improvement, it's potentially feeding proprietary information through a channel the confidentiality obligation can't reach. The fix isn't to strike the clause. It's to make it bend to the confidentiality section instead of overriding it. Most versions do the opposite, and they sail through review because they read like routine IP housekeeping. A new post on Redline (redline.net) by one of its top contributors breaks this down and offers clause language for this problem. Redline is a dynamic collaboration environment for a select cadre of lawyers worldwide.
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Sean Hogle shared thisSean Hogle shared thisAssignment clauses in SaaS agreements need a fresh look Your SaaS assignment clause probably says something like, "neither party may assign without consent, except in connection with a merger or sale of all or substantially all of its assets." That language was written for equity deals. It falls short in the transactions that may actually take place: acqui-hires, product line sales, distressed divestitures. The "all or substantially all" qualifier is borrowed from corporate law and gets interpreted narrowly. A single product line sale might not qualify. The clause says nothing about data, which under the EU Data Act, GDPR, and CCPA creates a real authorization problem. And it ignores transitional services, where the buyer operates the platform during wind-down while the seller keeps the customer contracts. A new thread on Redline (redline.net) proposes assignment language that addresses all three: broad transaction coverage without a materiality threshold, express data transfer authorization tied to service continuity, and a contingency for the use of service providers post-acquisition. The differences are modest on the page. When a deal materializes, it determines whether customer data is a transferable asset or a regulatory obstacle. Learn more at https://lnkd.in/gaEibG-i
Experience & Education
Licenses & Certifications
Volunteer Experience
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Chair, Licensing and Technology Transactions Interest Group, Intellectual Property Section
State Bar of California
- 8 years 1 month
Organizing and conducting programs, webinars and presentations. Assumed Chair position as of July 2019.
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Co-author of regular column in State Bar Quarterly IP Journal
California State Bar
- 6 years 9 months
Co-author of the "Licensing Corner", a regular column with topics of interest to technology transactions, intellectual property, and licensing practitioners.
Publications
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Choice of Law in Cross-Border License and Confidentiality Agreements
New Matter (Quarterly Journal of the Intellectual Property Section of the California Lawyers Association), Spring 2019
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Responsibility for Strict Liability IP Infringements: Developers vs. Licensors
New Matter (Quarterly Journal of the Intellectual Property Section of the California Lawyers Association), Fall 2018
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Open Source Contribution License Agreements: A Modest Proposal
New Matter
Spring Issue of New Matter (Quarterly Journal of the Intellectual Property Law Section of the California Lawyers Association)
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Unauthorized Derivative Software
New Matter (Quarterly Journal of the Intellectual Property Section of the California Lawyers Association), Fall 2017
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M&A-Friendly Outbound Technology License Agreements
New Matter
Quarterly Journal of the Intellectual Property Law Section of the California State Bar
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Software Copyright and Innovation after Oracle v. Google
New Matter (Quarterly Journal of the Intellectual Property Law Section of the California State Bar)
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Open Source Licensing and the Viability of the Free Software Movement
3 LANDSLIDE 6 (July/August 2011) (lead article, official publication of the Intellectual Property Section of the American Bar Association)
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Conditions vs. Covenants: California Rulings Threaten the Practical Enforceability of Open Source Licenses
25 COMPUTER & INTERNET LAW. 1 (Sept. 2008)
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Unauthorized Derivative Source Code
18 COMPUTER & INTERNET LAW. 1 (May 2001)
Article cited in Amgen, Inc. v. Hoechst Marion Roussel, Inc., 339 F. Supp. 2d 202 (D. Mass. 2004) (US District Court decision discussing the reverse doctrine of equivalents under patent law).
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The Employee as Investor: The Case for Universal Application of the Federal Securities Laws to Employee Stock Ownership Plans
34 WM. & MARY L. REV. 189 (1992)
Projects
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Cloud Hosting Providers: A Most Precarious Dependency
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Presentation to the Licensing and Technology Transactions Interest Group of the IP Section of the California Lawyers Association.
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Advanced Topics in Agreements for the Delivery of Professional Services
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Presentation to the Licensing & Technology Transactions IG of the IP Section of the California Lawyers Association
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Most NDAs Fail to Protect Trade Secrets (and Other NDAs Tips, Traps, and Tricks)
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Presentation to the Licensing & Technology Transactions IG, IP Section, California Lawyers Ass'n
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Specific Performance of Copyleft: Open Source Your Software or Face Contempt of Court
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Presentation to Licensing & Technology Transactions IG, IP Section, California State Bar
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An Exploration of the Oracle v Google Software Copyright Litigation
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Solo presenter, State-bar sponsored webinar (California Lawyers Association, Intellectual Property Section, Licensing & Technology Transactions Interest Group)
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Open Source Licensing
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Solo presenter, PLI's Advanced Licensing Agreements 2020 program, San Francisco
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Do Your Diligence: Protecting Trade Secrets in Licensing and Tech Transactions
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Co-panelist in CLA-sponsored webinar, with the Trade Secrets Interest Group of the Intellectual Property Section.
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Negotiating the Technology License: Can Both Sides Get to Yes?
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Co-panelist in State Bar-sponsored webinar at the IP Institute's 2017 Annual Meeting.
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M&A Friendly Technology License Agreements
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Solo presenter, State-bar sponsored webinar (California State Bar, Intellectual Property Section, Licensing Interest Group)
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An Exploration of the Proprietary Information and Inventions Agreement
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Solo presenter, State-bar sponsored webinar (California State Bar, Intellectual Property Section, Licensing Interest Group)
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Anatomy of a Technology License
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Solo presenter, Intellectual Property Transactions Seminar, UC Berkeley Law International and Executive Legal Education
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Open Source: An Overview
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Presentation to MINC (Malmö, Sweden startup incubator)
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The Debate Over Boundaries: An Analysis of GPLv2 and Derivative Works
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Presentation, Open Source in Mobile Conference 2009 (Amsterdam, Netherlands)
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Establishing Open Source Projects / How to Choose the Right License
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Presenter and Panelist, Open Source in Mobile Conference 2008 (Berlin, Germany)
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World Beyond GPL
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Presentation, Open Source in Mobile Conference US 2008 (San Francisco, California)
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GPL Version 3: What the License Means to You / Minimizing Legal Risks of Open Source Licensing
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Presenter and Panelist, Open Source in Mobile Conference 2007 (Madrid, Spain)
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Resolving Domain Name Disputes
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Presentation to Marin County Bar Association
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From Gutenberg to Gates: Publishing in the Electronic Age
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TV Panelist, Regis University Media Day, CSPAN2
Honors & Awards
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A Cut Above the Rest: Asia's In-House High Flyers
ASIAN LEGAL BUSINESS (June 2006)
Identified in survey of private Asian law firms as one of "the best and brightest in-house minds in the region".
Languages
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English
Native or bilingual proficiency
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Japanese
Limited working proficiency
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