Based largely on questions repeatedly raised by German, Austrian and Swiss clients, I began writing memos and articles to address these. Most are intended for that audience, but some reflect many hours of research resulting in recognition that “standard” contract provisions – damages, warranty survival, rights of first refusal, for instance – do not work. Often a party trades away something valuable to get a “right” that cannot be enforced.

Doing a Deal with the Germans – 13 pages cover German society in general, technology, the legal system and contract style, German management structure, labor laws, negotiation styles, German directness and the importance of family-owned companies. Some aspects are dated but most are still relevant.

Selling Your Company – 16 pages in outline form for both Americans and foreigners.

Buying a House in the USA – 4 pages on the basics of buying a house, intended for Europeans but helpful for Americans.

Achtung beim US-Immobilienkauf – A German language version the English article, describing buying a house in an auction by the holder of a defaulted mortgage, including title insurance and other differences from the German system.

Acquisition Process Speech – 10 pages in outline form, describing the process.

Legal Framework for Sales in Germany – 5 pages on how a company can distribute goods in Germany, intended for US and other non-Germans setting up a sales operation in Germany.

The Wally Decision – a 4-page summary of the New York decision regarding the ownership of the Egon Schele painting, without comment.

How Do German Contracts Do As Much With Fewer Words? – 5 pages summarizing a law review article on this subject.

Formation of a US Subsidiary – 8 pages describing the US incorporation process, pointing out the many differences between US and German corporations.

Enforcement of US Judgments in Germany – 4 pages on the German process, written by Tim Montag when he was a Referendar / German trainee.

Unerwartete Risiken und deren Minimierung in M&A Transaktionen – 19 pages, essentially a German version of the English article.

Minimierung des Halftungskisikos in den Vereinigten Staaten – 17 pages on a favorite German question – how to minimize liability – for which there is no simple answer.

Limitations of Product Liability – 6 pages intended for lawyers advising manufacturing clients which sell to other businesses, not to consumers – how to limit or exclude liability due to “defective” products.

Battle of Printed Sales Forms – 13 pages on the risks of accepting the other side’s printed terms and conditions and how to avoid them, including a chart showing various scenarios.

Closing May be Only Halfway Through the Transaction – 21 pages describing the factors that go into formulating M&A contract representations and post-closing claims and recovery, measure of damages.

US Law Basics for Visiting German – 3 pages with 26 points about US law, the result of learning one of our many German legal trainees had somehow not learned the basics during his stay.

Amerikanische M&A Praxis -Was Deutsche Anwaelte im Hinterkopf Behalten Sollten – 14 pages covering the biggest differences between German and US acquisition agreements, such a letters of intent, due diligence, choice of law, authority of the signer, capital requirements and sandbagging.

Common Values – But Not When It Comes to Data Collection – 26 pages published in the Festschrift for Dolf Weber, on German vs. American attitudes about privacy.

Restrictive Covenants in Venture Capital Contracts – 5 page summary of a 50 page article by a finance professor.

Wirtschaftliche Risiken beim Schuldrechtlichen Vorkaufsrecht – 10 pages on the unappreciated problems and costs represented by a simple right of first refusal, a right often granted as if it were harmless. This article was not finished, but shows some of the difficulties.

Rights of First Refusal – 10 pages published in Practical Lawyer, describing the risks of this common clause and how to protect against the unforeseen risks.

Funktion & Durchsetzbarkeit eines Letter of Intent – 6 pages published in M&A Review, with advice on the risks that letters of intent can present, especially if signed without legal advice.

How to Make Your M&A Fees Predictable – 6 pages published in Executive Counsel, the article looks at acquisitions from the standpoint of legal complexity and allocation of risk.

Cautionary Tales – 8 pages published in German American Trade, listing assumptions many foreign business people bring with them.

Shoe is on the Other Foot when Management Buys – 4 pages published in Executive Counsel, what representations should Buyer and Seller give when the Management Buyer knows more about the company than the Investor Seller.

Go-West: Die Gründung einer US-Corporation vor dem Spiegel des deutschen Kapitalgesellschaftsrechts. Ein Überblick für Investoren und Berater – 13 pages covering the basics of forming a US corporation and the differences from the German system.

Bewuesstseinstraining gegen Diskriminierung – 6 pages warning German managers not to say things they could say in Germany and why not.

Cat and Mouse at the Deal Table – 5 pages published in Executive Counsel, risks that arise when businessmen sign letters of intent without legal counsel.

List of Pro-Buyer Points in International Purchase Agreement – 3 pages with 31 points to consider when buying a product internationally.

Common Errors by Foreign Businessmen – 4 pages published in German American Trade, listing mistakes made because “that’s how we do it at headquarters back home in Europe,” mistakes that can lead to unlimited liability.

Punitive Damages – How Juries Decide – 7 pages published in German American Trade, there is no silver bullet, but the article gives practical advice on how businesses can take defensive actions before the claims arise.

Cat and Mouse at the Deal Table – Letters of Intent in Small and Mid-Sized Transactions – 5 pages published in Executive Counsel, deals with the risks of letters of intent, especially if business people have executed one without legal counsel.

Interpretation of English Contracts Under German Law– 4 pages translated and summarized from an NJW article dealing with contracts written in the second language of both parties.

Vertragsanlagen – Die Stiefkinder der Vertragsentwuerfe – 7 pages published in M&A [German magazine], on how exhibits can make the text of the contract irrelevant; a translation of an article on the role of exhibits in M&A contracts.

Die Risiken des amerikanischen Delektrechts bei M&A Transaktionen – 6 pages published in M&A Review covering how to make claims outside the terms of the written acquisition agreement.

Die unterschiedliche Auslegung einzelnen Schadensersatzpositionen im Amerikanischen Vertrags und Delektrecht im Ramen von M&A Transaktionen – 5 pages published in Recht und Steuern, a discussion of different kinds of damages buyer may claim in the M&A context and how contract provisions affect them.

Die Fesstellung der organschaftlichen Vertreungsverhaeltnisse in den USA – 4 pages published in M&A Review contrasting German and American procedures for proving that a signatory to a contract has the power to bind that company.

Effect of Mergers and Acquisitions on Requirements Contracts – 7 pages in law memo form, with case citations. How is the obligation to purchase or supply another’s “requirements” affected by an acquisiton?

A Foreign Manager’s Introduction to Discrimination – 5 pages published in German American Trade outlining things European managers might say in Europe but have consequences in the USA.