Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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As we previously reported, a company’s social media pages and profiles, and the associated followers, friends and other connections, may constitute valuable bus

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Good Rep: Social Media Assets in M&A Transactions

Good Rep: Social Media Assets in M&A Transactions | Socially Aware

As we previously reported, a company’s social media pages and profiles, and the associated followers, friends and other connections, may constitute valuable business assets. In our experience, however, social media assets often receive little attention in M&A transactions. Purchasers in such transactions generally require sellers to make robust representations and warranties regarding the target company’s assets, but a typical purchase agreement may give social media assets only cursory treatment or, in some cases, not explicitly cover social media assets at all. In an attempt to rectify this oversight, this article outlines a set of representations and warranties that a purchaser may consider to address issues relating to a target company’s social media assets in an M&A context.To begin, it is necessary to define the category of assets at issue. In defining this category—which we will refer to as “Social Media Accounts” for convenience—a purchaser may wish to capture a broad swath of online assets not limited just to a company’s pages and profiles on the major social networks (although those should certainly be addressed), including all accounts, profiles, pages, feeds, registrations and other presences on or in connection with any:<ul><li>social media or social networking website or online service;</li><li>blog or microblog;</li><li>mobile application;</li><li>photo, video or other content-sharing website;</li><li>virtual game world or virtual social world;</li><li>rating and review website;</li><li>wiki or similar collaborative content website; or</li><li>message board, bulletin board or similar forum.</li></ul>Armed with a broad definition of “Social Media Accounts” as described above, a comprehensive set of social media representations and warranties would require the seller to provide a list of all Social Media Accounts that the target company uses, operates or maintains, and to identify, for each such Social Media Account, any account names, user names, nicknames, display names, handles and other identifiers registered, used or held for use by or for the target company (which we will refer to collectively as “Social Media Account Names”).The purchaser may then ask the seller to make some or all of the following representations and warranties with respect to Social Media Accounts and Social Media Account Names:<ul><li>None of the Social Media Account Names infringes or otherwise violates any trademark rights or other intellectual property rights of any third party.</li><li>All use of the Social Media Accounts complies with and has complied with (i) all terms and conditions, terms of use, terms of service and other agreements and contracts applicable to such Social Media Accounts, and (ii) applicable law and regulation.</li><li>The target company has implemented and enforces an employee social media policy that:</li><li>provides that the company, and not any company employee or contractor, owns and controls the Social Media Accounts and Social Media Account Names (including all associated information and content, all relationships, interactions and communications with fans, followers, visitors, commenters, users and customers, and all associated good will and opportunities);</li><li>requires all employees and contractors to relinquish to the company all Social Media Account Names, passwords, and other log-in information for the Social Media Accounts upon termination of employment or engagement or at any other time upon company’s request;</li><li>includes appropriate guidelines and restrictions regarding the use of (i) the Social Media Accounts, and (ii) personal social media accounts, including, in each case, with respect to endorsements, attribution, disclosure of proprietary information and violation of intellectual property rights; and</li><li>complies with applicable law and regulation.</li><li>Each of the target company’s employees and contractors has agreed in his or her company employment agreement to comply with such social media policy.</li><li>The contemplated transaction will not result in the loss or impairment of the target company’s ability to use, operate or maintain any Social Media Account or Social Media Account Name, or in the breach of any terms of use, terms of service or other agreements or contracts applicable to such Social Media Accounts.</li></ul>It should be noted that a set of representations and warranties incorporating all of the points above may be more than is practical or necessary for many transactions. Purchasers will need to determine in each case how robust the social media representations and warranties should be based on the particular circumstances of the transaction, including the nature of the target company’s business, the extent of the target company’s use of social media and the relative negotiating positions of each party.One last caveat: We use the term “assets” in relation to a company’s social media pages and profiles advisedly, given that their legal status as property is tenuous at best (in almost all cases, these “assets” could be taken away by the third-party operators of the relevant social media platforms). But the issues addressed above are issues that we have seen arise repeatedly in reported cases, so we hope that this article will at least be helpful in thinking through some of the points that a purchaser should consider when acquiring a target company that uses social media in its business.