1. Strategies for Successful Negotiations NCURA Regions VI and VII Meeting Newport Beach, California Sara Judd Director, Department of Contracts and Grants University of Southern California Jeri Muniz Executive Director, Department of Contracts and Grants University of Southern California

2. The Basics Understand your University Communicate with the PI before the negotiation Communicate with the PI before the negotiation Gather info How did the project come about? How did the project come about? Urgency of project (Has the work already started?) Urgency of project (Has the work already started?) What does the PI expect out of the project? What does the PI expect out of the project? What do both parties bring to the table? What do both parties bring to the table? Is there history with the Sponsor? Is there history with the Sponsor? Are we the only game in town? Are we the only game in town? Answer questions Explain Industry’s position and the impact on the research team Explain Industry’s position and the impact on the research team Clarify university policies, if necessary Clarify university policies, if necessary

3. The Basics Understand Your Partner Get to know the Sponsor’s negotiator Get to know the Sponsor’s negotiatorAuthorityExperiencePersonalityIncentivesAvailability Ask Why? Ask Why? Understand their motivations What research results and IP rights do they expect? What research results and IP rights do they expect? What will they contribute to the project? What will they contribute to the project? Timeframe Timeframe

4. Why? Solid Understanding = Solid Explanations Solid Understanding = Creative Solutions Solid Understanding = Credibility with Sponsor Solid Understanding = Yes!

5. What’s the secret weapon? Strategery

6. Strategery Determine the best mode of communication Email or telephone Pros & cons of each Criteria to consider Complexity Timeframe Capacity of Negotiator(s) Volume of Proposed Revisions The Golden Rule The Big Picture Remember the importance of the research

7. Strategery Why develop a rapport? Creates a relaxing environment Mitigates the “adversarial” stereotype of a negotiation Levels the playing field How to develop a rapport Ice Breaker Teambuild Get them to laugh….even if it’s at your expense! Put yourself in their shoes BE NICE! It’s all how you say it….

8. Strategery Ask for clarification when: No rationale is provided You need to discern what the true concerns are, so that you can provide appropriate language alternatives You need to “teambuild”, educate or elicit “conceptual agreement” Give them everything they need to say “yes” Explain your position – detail the “why’s” and “why nots” Give them the “why we need it” AND the “why it’s okay for them to accept it” rationale Provide “extreme” examples to demonstrate concepts Provide rationale Use the terms that already exist in your agreement

9. Strategery Our Favorites Stuff in Common: Weather, location, organizations, kids, workload, etc. Explanations For Dummies: Make yourself the dummy Start with: “Share with us” or “Help us understand” Confirm understanding: “I just want to be sure that I understand so that we may craft language that meets the needs of both our institutions” The Feel Good: “It seems that we’re on the same page conceptually, we just need to make the words match…”

10. Strategery Developing rationale The reality approach The reality is….. The peer pressure approach Everybody’s doing it…. Reference other sponsors to reduce anxiety “Keeping up with the Jones’” The “reverse rationale” approach Ask Sponsor to provide some examples to support their position Ask if the tables were turned, would the same language be acceptable to Sponsor State the implications of the language in the reverse The “Newspaper” approach

11. Strategery Make it as easy as possible for them Offer to draft/provide language based on conversation Offer to talk with others to explain your position Prime sponsors, legal team, others Know when to hold ‘em Risk Assessment Pick your bargaining chips before you go into the discussion “master of the obvious” language can be used Language that THEY have proposed that is actually BETTER for us Stuff we don’t care about Be aware of when further discussions will not further your cause: You’re talking to the wrong person (authority/capacity) The person does not understand BE CREATIVE!

12. Strategery Uh-oh...we’re not the only ones with Strategery! Their Approach: Lazy contracting We have new agreement, policy, management I’m new Stall Sneak stuff in Send a contract with 8 pages of FAR clauses in 6 point font and say they need it back tomorrow or you won’t get the money Call your PI Call your boss Call your PI AND your boss

13. Strategery Email Thank them profusely “We look forward to working with you to finalize this agreement so that we can begin this important collaboration…” Point out what you have done to make it easier for them “For your convenience, attached please find…” Writing basics Be personable but professional Business writing Spell and grammar check! Be clear and concise Understand that your message may be forwarded Understand that your message may end up in an audit If you are cc’ing people, let them know why, if they don’t already know, and don’t cc bosses, higher ups unless you’ve given them ample opportunity to “cure” their breach Read your email as if you were receiving it from a sponsor/party with whom you were negotiating…warm fuzzy, or prickly?…if prickly, START OVER!

14. Strategery Telephone Thank them profusely “We are looking forward to working with you to finalize this agreement so that we can begin this important collaboration, and thought we could accomplish this more quickly and easily via telephone…” Introduce everyone Talk about the weather, kids, dogs, big belt buckles Name drop (use connections if you have them!) Be proactive! Be the driver of the conversation -- driving does not mean control, driving means steering, directing Use references to promote positive conversation: I think we’re close, we just have a few things we wanted to discuss I understand your position We share the same mission Help me understand/Share with us Get conceptual buy in Give them a little rope….and then use it Hear what they have to say re: why they have an issue with the language and use that information to support your position (non-profits & IP ownership) If you get stuck in a circular conversation: MOVE ON Suggest drafting language to send to them Summarize the conversation, agreements and action items

15. Strategery Remember when we said “it’s all how you say it”? Buzz words: Positive vs. negative Positive We look forward to, Collaboration, work together Thank you for all of your time/Thank you for your efforts on our behalf Tie it back to the important research We are confident we will be able to reach terms that will meet the needs of our organizations PLEASE AND THANK YOU’S Negative Concerns We cannot accept Any form of can’t, won’t, don’t In accordance with Policy Why can’t you do this, or why did you do this Anything that can be construed as rude, offensive, condescending, sarcastic Throwing people under the bus

16. Ready, Set, Go… Let’s look at specific clauses and scenarios…

17. Scenario #1: Confidentiality Project: Evaluation of a learning program at Sponsor’s facilities University: Public Type of Agreement: Sponsored Research Ag. Sponsor: Mid-size local company Sponsor’s Negotiator: Outside Legal Counsel University Negotiator: SP Office Extra Motivation: First agreement between University and Sponsor (PI considers this a critical partnership ~ with a potential for future funding) First agreement between University and Sponsor (PI considers this a critical partnership ~ with a potential for future funding) Work already started Work already started

18. Sponsor proposed the following language: “2.Confidential Information. University acknowledges and agrees that the names and addresses of the Sponsors Corporations’ benefactors, donors, corporate partners and affiliates (collectively “Contacts”) and all other confidential information relating to those actual or prospective Contacts as well as other information such as but not limited to curriculum material, learning tools or teaching methods that has or could have commercial or other value in the purposes for which the Sponsor or its Contacts are engaged or in which they contemplate engaging and the Sponsor’s student records, employee records, and the Sponsor’s and the Corporations’ corporate partner agreements, benefactors lists, donors lists, information relating to the Sponsor’s curriculum, teaching methods, copyrighted materials, software and graphics created for the benefit of the Sponsor, business plans, strategy plans, development plans, accounting/financial records (including, but not limited to, balance sheets, financial statements, tax returns, payable and receivable information, bank account information and other financial reporting information), and private information related in any way to correspondence, history,, photos, data, and other information not generally known by or available to the general public …” “2.Confidential Information. University acknowledges and agrees that the names and addresses of the Sponsors Corporations’ benefactors, donors, corporate partners and affiliates (collectively “Contacts”) and all other confidential information relating to those actual or prospective Contacts as well as other information such as but not limited to curriculum material, learning tools or teaching methods that has or could have commercial or other value in the purposes for which the Sponsor or its Contacts are engaged or in which they contemplate engaging and information, that, if disclosed without authorization, could be detrimental to the interests of the Sponsor or its Contacts (the “Confidential Information”), whether or not such information is identified as Confidential Information. By example, and without any limitation, Confidential Information includes the Sponsor’s student records, employee records, and the Sponsor’s and the Corporations’ corporate partner agreements, benefactors lists, donors lists, information relating to the Sponsor’s curriculum, teaching methods, copyrighted materials, software and graphics created for the benefit of the Sponsor, business plans, strategy plans, development plans, accounting/financial records (including, but not limited to, balance sheets, financial statements, tax returns, payable and receivable information, bank account information and other financial reporting information), and private information related in any way to correspondence, history, gossip, stories, facts, rumors, photos, data, and other information not generally known by or available to the general public …” NOTE: This is just the definition….they then went on to obligate us to keep EVERYTHING confidential. Scenario #1: Confidentiality Actual Contract Language

19. Scenario #1: Confidentiality Contract Issue(s): Everything is confidential! Everything is confidential! Relationship with Sponsor Existence of the agreement, and the specific terms and conditions Anything University personnel see while visiting the company’s facilities University shall not engage in gossip, rumors.. University shall not engage in gossip, rumors.. What’s your approach? What do you need to understand about the University? The PI? The Sponsor? The Sponsor’s negotiator? What do you need to understand about the University? The PI? The Sponsor? The Sponsor’s negotiator? What resources do you have available? What resources do you have available? What examples would you use to explain your position? What examples would you use to explain your position? How do you facilitate the negotiation? How do you facilitate the negotiation?

20. Scenario #1 - Confidentiality Here’s what WE did: Confidentiality Explained the University’s approach re: confidentiality based on the nature of the Institution (including confidentiality of research results) Explained that the reason “marking of confidential information” is being requested, is to ensure that we are in fact able to uphold our obligations under the agreement, in that everyone would clearly understand what is to be considered confidential Limited the scope/breadth by providing a more narrow definition of Confidential Information Gossip Requested clarification of the intent (i.e., what are the Sponsors true concerns Used the “reality is” rationale: I can’t even control gossip in our office We are a research enterprise, and although we are in close proximity to Hollywood….we don’t really care, now if Albert Einstein showed up… In order to conduct the work, we cannot keep everything confidential Put the onus on the sponsor

21. Scenario #2: IP Project: PI-Initiated trial to treat psoriasis with an FDA approved drug (approved for the use to be studied) University: Private Sponsor : Big Pharma Industry Negotiator: Internal Legal Counsel University Negotiator: SP Office Extra Motivation: Parties negotiating for three months Parties negotiating for three months PI is anxious ~ VCR/Provost has been informed PI is anxious ~ VCR/Provost has been informed

22. Sponsor originally proposed ownership of all inventions but then proposed the following language: “6.PROPRIETARY RIGHTS All information resulting from the Study conducted under this Agreement, including all data, results, conclusions, discoveries, inventions, know-how and the like, whether patentable or not (“Data”) shall be fully disclosed by Institution and/or Principal Investigator to Sponsor. Sponsor shall have the unrestricted right to freely utilize all such Data in whatever manner it desires. All Data shall be the property of Institution. Institution hereby grants Sponsor an exclusive, irrevocable, fully paid-up, royalty free, worldwide license, with the right to sublicense, import, make, have made, use, offer to sell, sell have sold all such Data. Institution and/or Principal Investigator shall assist Sponsor, at Sponsor’s expense, in the preparation of all documentation necessary to effectuate and perfect Sponsor’s rights in such Data. ” Sponsor shall have the unrestricted right to freely utilize all such Data in whatever manner it desires. All Data shall be the property of Institution. Institution hereby grants Sponsor an exclusive, irrevocable, fully paid-up, royalty free, worldwide license, with the right to sublicense, import, make, have made, use, offer to sell, sell and have sold all such Data. Institution and/or Principal Investigator shall assist Sponsor, at Sponsor’s expense, in the preparation of all documentation necessary to effectuate and perfect Sponsor’s rights in such Data. ” Scenario #2: IP Actual Contract Language

23. Scenario #2: IP Contract Issues: Outright grant of an exclusive license to everything (inventions, data, know-how, etc.) Outright grant of an exclusive license to everything (inventions, data, know-how, etc.) What’s your approach? What do you need to understand about the University? The PI? The Sponsor? The Sponsor’s Negotiator? What do you need to understand about the University? The PI? The Sponsor? The Sponsor’s Negotiator? What resources do you have available? What resources do you have available? What examples would you use to explain your position? What examples would you use to explain your position? How do you facilitate the negotiation? How do you facilitate the negotiation?

24. Scenario #2 - IP Here’s what WE did: Know-how and the like, whether patentable or not Used combination the “reality is”/extreme example rationale: Know how = what’s inside the researchers head, so short of doing a brainectomy, or utilizing some sort of brain sucking machine…..how would this information be transferred? Explained that PI does not disclose “non-patentable” information to us, and in addition, they only assign patents to us, so therefore “patentable” is the only thing to which we would be able to provide rights Limited the scope/breadth by providing a more narrow definition of Data Sponsors use of data/exclusive license Used the “it’s the law” rationale: explained that a PI initiated study is not regulated by the FDA, therefore the law does not require such broad access to data. Explained that the granting of such a license would violate the tax reform act, ultimately jeopardizing the nonprofit status of the University Language could result in University (public entity) subsidizing Industry research – I get crabby about how you use my tax dollars

25. Scenario #3: Indemnification Project: Development/Testing of a survey tool; surveying alleged victims of elder abuse University: Public Type of Agreement: Collaboration Agreement (No Funding) Sponsor: County Agency Industry Negotiator: Contracts Specialist University Negotiator: SP Office Extra Motivation: Pressure from Sponsor to execute the agreement (“There’s no funding ~ so what’s the problem?”) Pressure from Sponsor to execute the agreement (“There’s no funding ~ so what’s the problem?”) Project linked to other ongoing projects Project linked to other ongoing projects

26. Sponsor proposed the following language: “University shall indemnify, defend with counsel approved in writing by the Sponsor, which approval shall not be unreasonably withheld, and hold the Sponsor, and their officials, officers, employees, agents (“SPONSOR INDEMNITEES”) harmless from and against any and all liability, loss, expense, or claims for injury or damages arising out of the performance of this Collaboration Agreement, but only in proportion to and to the extent such liability, loss, expense, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions including the actual or alleged sexual misconduct of University, its officers, employees, or agents. “University shall indemnify, defend with counsel approved in writing by the Sponsor, which approval shall not be unreasonably withheld, and hold the Sponsor, and their officials, officers, employees, agents (“SPONSOR INDEMNITEES”) harmless from and against any and all liability, loss, expense, or claims for injury or damages arising out of the performance of this Collaboration Agreement, but only in proportion to and to the extent such liability, loss, expense, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions including the actual or alleged sexual misconduct of University, its officers, employees, or agents. Sponsor shall indemnify, defend, and hold University, its officers, employees, and agents harmless from and against any and all liability loss, expense, or claims for injury or damages arising out of the performance of this Collaboration Agreement, but only in proportion to and to the extent such liability, loss expense, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of Sponsor, its officers, employees, or agents. Scenario #3: Indemnification Actual Contract Language

27. Scenario #3: Indemnification Contract Issue: University is to indemnify, for all acts or omissions, including alleged or proven sexual misconduct or abuse University is to indemnify, for all acts or omissions, including alleged or proven sexual misconduct or abuse What’s your approach? What do you need to understand about the University? The PI? The Sponsor? What do you need to understand about the University? The PI? The Sponsor? What resources do you have available? What resources do you have available? What examples would you use to explain your position? What examples would you use to explain your position? How do you facilitate the negotiation? How do you facilitate the negotiation?

28. Scenario #3 - Indemnification Here’s what WE did: Sponsor was also a State of CA entity Used the “it’s the law” rationale: We’re all one big happy family and you should know we can’t accept liability that extends beyond our negligence Referenced and requested we utilize language negotiated in previously accepted State of CA agreements Do as I say, not as I do – used the “reverse” rationale – would you accept this language as a State entity….well, same answer for us. Used combination the “reality is”/extreme example rationale: Elder abuse population may pose an increased risk re: allegations of sexual misconduct, which may result in increased associated defense cost There are costs associated with defending allegations that may not result in an actual finding of misconduct, therefore this would fall outside of the “negligence” arena

29. How do you manage it all???

30. Keys to Expediting Your Negotiations Getting Unstuck Don’t delay! Don’t delay! Be proactive and responsive Establish a timeline/deadline for response Establish a timeline/deadline for response Press “0” Press “0” Stalkers are people too! Identify others Identify others Google is a wonderful tool Involve your PI Utilize previous contacts Be creative!

31. Keys to Expediting Your Negotiations Develop an Officer Tool Kit Provides one-stop shopping for all resources related to topic/sponsor issues Provides one-stop shopping for all resources related to topic/sponsor issuesRationale Template language and agreements Access to internal/external guidance Previously negotiated agreements (and the corresponding history) Shared access Shared access Enhances consistency Self-updating

32. Keys to Expediting Your Negotiations Internal Training Build a Foundation Build an in-depth knowledge of applicable policies, laws, resources Language Build a strong conceptual understanding of the language Teach the Approach Find/Be a Mentor (sit in on live phone negotiations) Troubleshooting in a team environment It’s ongoing!!! Stay current!!!

33. Any Questions?