• Seeing your Name in Lights: Before you sign a location agreement, you need to understand the nature of the filming and think carefully about the use of your hotel. Do you want the goodwill of your name being shared in the movie or show? If so, do you have the rights to your hotel name? If your hotel is branded, you may need the approval of the brand under the franchise agreement.
• In it for the Money: Depending on your property and the filming schedule, some production companies will pay lucratively for the use of your property. Don’t be afraid to ask for a location fee. This is a business negotiating point to keep in mind, particularly when balancing risks and benefits to your property.
• Don’t Judge a Book by its Cover: Before making any final decisions about participation in the shoot, you should fully understand what is being filmed at your hotel, particularly if your name is being used or your property is easily identifiable. What actions are being taken at your property, or what is going to be said about your hotel? Some production companies will allow for a script read in advance to provide an opportunity for sign-off on the dialogue, in case there are issues involved with the portrayal of your property. You may also want to request language regarding the portrayal of your property in the final movie or show. Remember that the production company will own the footage in perpetuity – with the hotel having little to no contractual remedy to prevent the use of the footage after it is shot – so you must address any remaining concerns before the filming commences.
• Lights, Camera, Action: Is the production an action movie full of stunts conducted on the roof of your property, or does the hotel lobby set the scene for a romantic first kiss? The nature of the filming makes a difference for your risk allocation. You need an appropriate indemnity from the production company, evidence that it is appropriately insured (including you being named as additional insured on its applicable insurance policies), and to consider your preference for any dispute resolution. You should also address how to handle any damage to your hotel property that may result from the filming, and if the production company asks for a release, it should be negotiated prior to signing the location agreement.
• Your Show Must Go On: In the location agreement, it is essential to document and detail where and when the production company will be filming. Your hotel is your business, and unless the production company is renting out your entire hotel (which is rare), you need language in the agreement regarding the treatment of your guests. You also need to collaborate in advance with the hotel management and staff to ensure the shoot does not materially inconvenience the guests, and that the hotel can comply with the requirements of the location agreement.
• Who Was Voted Off: For many film shoots, particularly the ever-growing genre of reality television, confidentiality is of paramount importance to the production companies. Review these provisions carefully and consider whether the requested confidentiality restrictions are enforceable by your hotel management. The next step is to appropriately convey the message and instructions to your hotel staff regarding what they can and cannot do before, during, and after the filming.
• Behind the Curtain: Keep in mind that there are intellectual property and licensing considerations which may need to be addressed depending on the nature of the filming. Language stating that the hotel grants the rights to the production company for all art and objects in and around the property is often in the location agreement, but is it accurate? Does your hotel own the licensing rights to the piece of art that will be featured in the guest room scene? If not, it must be addressed.
• Sign on the Dotted Line: Who signs for the hotel is not always straight-forward. Under the hotel management agreement, the appropriate signatory for a location agreement may be the hotel owner, the hotel management company, or another construct such as the management company as an agent for the hotel owner. Either way, make sure that the agreement accurately reflects the appropriate signatory in the recitals and the signature block, and that the text of the location agreement accurately addresses the references to the signatory.

1. When hiring a new employee (especially in management or sales), consider including language in the offer letter affirming that the employee has disclosed any restrictive covenants in effect from prior employers, and acknowledging that he/she will not bring any confidential documents, data, or information from previous employers to the company. Such language may protect the company from being sued if a new employee fails to disclose a restrictive covenant, or otherwise engages in a breach of duties owed to a prior employer.
2. If you are considering hiring a group of employees from a competitor, negotiate with each one separately wherever possible. In many states, employees (especially managers) owe a duty of loyalty to their employer. Acting as a go between or actively soliciting for a competitor while still employed with the prior company could raise legal issues. If you are looking to hire a team or group, it is best to hire the point person first, then once aboard that person can set out to recruit the remaining employees to come to your company (assuming that employee has no contractual restrictions on solicitation).
3. Develop a protocol for ensuring that high level departing employees do not download or otherwise misappropriate proprietary information. When notified of a resignation: (1) Conduct a review of work email for transmittal of information to personal email accounts; (2) Identify any suspicious use of removable USB devices; and (3) Conduct an exit interview that consists of asking the employee to affirm that all property has been returned, including all electronic devices and passwords.
4. Handbook policies on confidentiality and the return of company property are appropriate, but a breach of a policy is not actionable, and does not entitle the company to injunctive relief (i.e. an order requiring compliance). Consider requiring a confidentiality agreement for any employees who have access to important company data or property that could be harmful if disclosed to a competitor, and you may want back if not returned.
5. For key personnel, you may need more than a confidentiality agreement to protect the company’s interests. In those cases, consider the use of a non-compete and/or non-solicitation agreement (which can be coupled with the confidentiality portion into one document). A non-compete provision restricts the employee from working for a competitor for a certain period of time in a defined geographic area. Such covenants must be reasonable, and narrowly tailored to protect the client’s interests. A non-solicitation provision does not restrict the employee from working for a competitor, but restricts certain activities for that competitor, usually soliciting company customers or employees for a period of time. Like a non-compete provision, a non-solicitation covenant must be reasonable. For example, the restriction should only apply to customers with whom the employee actually had contact or access to confidential information, as opposed to a restriction from contacting all of the company’s customers.

Non-compete litigation is state specific and the laws can vary widely from state to state. For example, Texas allows reasonable restraints on competition, while California (and recently Massachusetts) outlaw such agreements. It is advisable to have any agreements reviewed for enforceability in the states where such agreements are likely to be enforced.

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Bob has studied the rules of various arbitration providers. He knows an effective advocate chooses the arbitration forum that offers the rules best suited for the particular controversy. So, for instance, “If you want depositions, why not pick an arbitration forum whose rules expressly allow depositions?” Always the riddler, Bob put this question on his office wall.

Bob soon had a chance to put words into action. His client was involved in a messy business dispute that spilled over into a contentious litigation. Using his code words—more expeditious, more cost-effective, and confidential—Bob convinced the other side to arbitrate the dispute. The parties asked the court to enter an agreed order sending the case to arbitration.

Bob needed a couple depositions to prove his case. He drafted an arbitration agreement that identified ABC Arbitration Co. as the arbitration provider: “The parties agree that all disputes at issue in the current litigation shall be settled by arbitration administered exclusively by ABC Arbitration Co. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.”

Why ABC? Because its rules stated, “Each party may take two depositions of an adverse party.” Deposition problem solved. Another example of brilliant drafting that anticipated and resolved a potential snare.

There was one problem: ABC Arbitration did not exist. Bob and his adversary could not find ABC’s offices, website or anything having to do with ABC. “No matter,” Bob assured his client. “The parties can select another arbitration provider and can proceed with the desired arbitration.”

Except that Bob two days later received his adversary’s motion to vacate the stipulation and order that directed the parties to arbitration in the first place. His adversary’s argument was simple. The arbitration provision identifies ABC as the arbitral forum; ABC does not exist and cannot arbitrate the dispute; consequently, the parties cannot arbitrate their dispute in accordance with the arbitration clause.

Must the parties now return to court or can Bob salvage the arbitration?

Section 5 of the Federal Arbitration Act states: “If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.”

How do courts determine whether the process for naming an arbitrator “lapses”? If the provision says the designated forum is the “exclusive” arbitral forum, there is a lapse and the court will not enforce the arbitration provision.

“If a designated arbitrator is unavailable, Section 5 of the FAA permits a court to appoint a substitute arbitrator in certain circumstances. Our court of appeals has not addressed the precise set of circumstances in which a court may appoint a substitute arbitrator, but other federal courts have held that Section 5 of the FAA generally permits a court to appoint a substitute arbitrator where the chosen arbitrator is unavailable, unless the selection of an arbitrator is ‘integral’ to the arbitration agreement, as opposed to an ‘ancillary logistical concern,'” the court wrote in Clerk v. Cash Central of Utah LLC, 2011 U.S. Dist. LEXIS 95494, at *13-*14 (E.D. Pa. Aug. 25, 2011).

How does one determine if the selection of the arbitrator is “integral” to the arbitration agreement? The court in Clerk said, “An arbitral forum is an integral part of an arbitration agreement if the agreement includes an express statement designating a particular arbitral forum to administer arbitration.” The Pennsylvania Superior Court agreed in Stewart v. GGNSC-Canonsburg, 9 A.3d 215, 219 (Pa. Super. 2010): “At a minimum, for the selection of an arbitrator to be deemed ‘integral,’ the arbitration clause must include an ‘express statement’ designating a specific arbitrator.” In Khan v. Dell, 669 F.3d 350 (3d Cir. 2012), however, the U.S. Court of Appeals for the Third Circuit reversed the rule. It said the choice of forum is an integral part of the agreement to arbitrate only if “the parties … have unambiguously expressed their intent not to arbitrate their disputes in the event that the designated arbitral forum is unavailable.” So what is an arbitration-contract drafter to do?

• The drafter should decide whether this is an “all or nothing” situation. Is the chosen arbitral forum the only acceptable forum? If so, the drafter should expressly say the forum is “exclusive.” Did Bob consider this issue? No. Would a forum other than ABC Arbitration have worked for Bob? Probably. Did Bob’s arbitration provision achieve his avowed goal? No.
• If another provider can substitute for the chosen arbitral provider, the drafter should make sure to avoid saying—expressly or impliedly—that the chosen provider is “exclusive.” Did Bob say the chosen provider was “exclusive”? Yes: “The arbitration [must be] administered exclusively by ABC Arbitration Co.” Did Bob really mean that? Nope. Did he consider the consequences of this language? Nope.

Could Bob have gotten his cake and eaten it too by ensuring that the parties go to and stay in arbitration even if the designated provider is not available? You bet. As Bob often tells anyone who will listen, “You first have to decide what you want to achieve in arbitration; you then use the language to get there.” Bob failed on both fronts. He is not going “there.”