Litigation Insights

Analysis and practical guides on litigation.

199 articles, checklists, and guides on litigation law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

LitigationRemedies

Contempt and Enforcing Injunctions: Civil, Criminal, and What an Order Actually Compels

An injunction is worth what a court will do when someone ignores it, and the machinery for finding out is contempt. This article separates civil from criminal contempt — a distinction that determines the burden of proof, the procedural protections, who prosecutes, and whether a jury is required — and explains why the label a party puts on its motion does not control. It works through what an order actually compels under Rule 65(d), including the specificity requirement that defeats more contempt motions than any factual dispute and the narrow set of nonparties an injunction binds. It then covers the elements of a civil contempt showing after Taggart, the difference between coercive and compensatory sanctions, purge conditions and the keys-to-the-jail principle, the inherent power that reaches conduct no rule covers, and the practical mechanics of getting an order enforced.

Casey Scott McKaySeptember 5, 202629 min read

LitigationRemedies

Contempt and Enforcement Checklist: A Practical Checklist

This checklist runs an enforcement effort from the first sign of non-compliance through the sanctions hearing and appeal, in the order the work happens. It opens with reading your own order as a hostile reader would and identifying who is actually bound, because the specificity requirement and the Rule 65(d)(2) list defeat more contempt motions than any factual dispute. It then covers the compliance demand that resolves many situations for the cost of an afternoon, post-judgment discovery, choosing among clarification, enforcement, and contempt, and building a record that satisfies the clear and convincing standard. Later sections address choosing the sanction, proving compensatory harm and segregating fees, the hearing, defending a contempt motion, appeals and stays, judgment-proof and foreign respondents, discovery-order enforcement, consent decrees, and drafting the next order. Every item is written so a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202611 min read

LitigationArbitration

Confirming and Vacating Arbitration Awards: The Narrow Door of FAA Review

An arbitration award is close to unreviewable, and that is the point of arbitration. This article explains what a court may and may not do with an award under the Federal Arbitration Act: the mandatory confirmation provision of Section 9, the four exclusive vacatur grounds of Section 10, the narrow modification power of Section 11, and the three-month clock in Section 12 that ends most challenges before they start. It traces what Hall Street, Stolt-Nielsen, Oxford Health, and Badgerow actually decided, why "the arbitrator got it wrong" is not a ground, and where the remaining space for real challenges lies. It also explains the jurisdictional problem Badgerow created for confirmation petitions and how practitioners are working around it.

Casey Scott McKaySeptember 5, 202629 min read

LitigationClass Actions

Class Certification Toolkit: Damages Models, Daubert Motions, and Certification Records

This toolkit provides the working documents for a class certification campaign on either side. It opens with class definition templates and the drafting rules that separate a certifiable definition from a fail-safe one, followed by a certification motion outline organized as a proof rather than an argument. The expert materials include an engagement scope, a model specification memorandum, a member-level results table, and the false positive and disaggregation test protocols that decide most disputes. A data production protocol and dictionary template address the schedule risk that derails these cases. Litigation materials include a Rule 702 motion outline, an expert deposition outline, a findings request, a trial plan with a draft verdict form, and a Rule 23(f) petition structure. It closes with a state-law variation chart and a settlement class approval checklist.

Casey Scott McKaySeptember 5, 202614 min read

LitigationClass Actions

Class Certification Expert Checklist

This checklist covers the expert work that decides a class certification motion, from selecting the expert to preserving the record for appeal. It opens with selection and engagement criteria, then the data foundation that every quantitative model rests on, including the dictionary and validation steps that prevent months of dispute. Model construction sections address fit to the certified theory, specification, benchmark integrity, aggregation, and the member-level output the court will ask for. The defence attack section covers quantifying uninjured members, the false positive test, disaggregation, and replication. Method-specific sections cover regression, conjoint, and event study evidence. Later sections cover the Rule 702 motion, expert depositions and code production, the certification hearing including live and concurrent testimony, and the findings and deadlines the appellate record requires.

Casey Scott McKaySeptember 5, 20267 min read

LitigationClass Actions

Class Certification and the Expert Battle: Comcast, Predominance, and Daubert Before the Merits

Class certification is where most class actions are decided, and the fight is conducted almost entirely through experts. This article explains the rigorous analysis required under Rule 23, why commonality after Wal-Mart demands a common answer rather than a common question, and how Comcast tied the damages model to the liability theory in a way that reshaped certification practice. It works through the predominance inquiry as it actually operates — common proof of impact, the treatment of uninjured class members, and the role of representative and statistical evidence after Tyson Foods — and through the securities presumption cases from Basic to Goldman Sachs. Separate sections address whether and how Daubert applies at the certification stage, the standards for regression, conjoint, and event study evidence, and the strategic choices that decide who wins. Worked examples follow an antitrust overcharge model, a consumer mislabeling case, and a securities price impact hearing.

Casey Scott McKaySeptember 5, 202628 min read

LitigationArbitration

Challenging or Enforcing an Arbitration Award: A Practical Guide

A step-by-step guide to what happens after an arbitration award issues, written for both the winner and the loser. It covers the first two weeks of deadline management, the honest assessment of whether a vacatur ground exists, drafting and briefing the vacatur motion, the confirmation petition and its jurisdictional traps after Badgerow, and turning a confirmed award into collected money. It includes a decision framework, a realistic budget, worked timelines, and the drafting lessons that follow from each. The recurring theme is that the outcome is usually determined before the award issues, by the clause and by the record.

Casey Scott McKaySeptember 5, 202628 min read

LitigationAppellate Practice

Certiorari Petitions and Rehearing En Banc: The Last Two Doors in Federal Appellate Practice

Certiorari and rehearing en banc are the two discretionary doors at the end of a federal appeal, and both are opened by considerations that have little to do with whether the decision below was wrong. This article explains what actually moves the Supreme Court — a genuine, entrenched, outcome-determinative conflict among the courts of appeals or state courts of last resort, on an important and recurring question, in a case that presents it cleanly — and why vehicle problems defeat more petitions than weak merits do. It covers the anatomy of a petition, from the question presented through the reasons for granting, the brief in opposition and when a waiver is the better choice, and the signals that a petition is being taken seriously. Separate sections address rehearing en banc under FRAP 35 and panel rehearing under FRAP 40, the intra-circuit conflict and exceptional importance grounds, and the coordination of amicus support. Worked examples follow a circuit split petition, a defensive opposition, and an en banc campaign.

Casey Scott McKaySeptember 5, 202628 min read

LitigationAppellate Practice

Certiorari and En Banc Petition Checklist

This checklist runs a discretionary review petition from the decision whether to file through disposition. It opens with the four threshold questions and the case selection that determines everything, then the conflict research and the vehicle analysis that must be completed before drafting begins. Drafting sections cover the question presented, the statement, and the reasons for granting in the order the Court reads them, with the merits argument in its proper subordinate place. Respondent sections cover the waiver decision and a brief in opposition that leads with vehicle problems. Later sections cover amicus coordination and its deadline, the rehearing en banc petition with its Rule 35 certificate and intra-circuit conflict ground, panel rehearing as a narrowing tool, appendix and filing mechanics, the deadline calendar, and how to read the signals after distribution.

Casey Scott McKaySeptember 5, 20267 min read

LitigationClass Actions

CAFA Toolkit: Notices of Removal, Jurisdictional Evidence, and Exception Briefing

This toolkit supplies the working documents of a CAFA removal and the remand fight that follows. It opens with a removal calendar keyed to formal service and the ten-day appellate application that gets missed, a complaint intake worksheet that reads the pleading for removability, and a removal decision memorandum that forces the strategic call to be made explicitly. It provides an annotated notice of removal template built around plausible pleading rather than premature proof, a citizenship allegation reference, an amount in controversy worksheet, and a jurisdictional declaration that survives contest. Later tools cover a remand opposition outline organized around the burden allocation, local controversy and home state briefing frameworks, targeted jurisdictional discovery requests, a mass action analysis worksheet, and a section 1453(c) petition outline. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202619 min read

LitigationClass Actions

CAFA Removal and Remand Checklist: A Practical Checklist

This checklist runs a CAFA removal and the remand fight that follows, by the calendar, from both sides. It opens with the day-one deadlines including the ten-day appellate application that is missed most often, then the six intake questions that determine removability and the exception exposure that shapes everything after. It covers drafting a notice that pleads plausibly rather than proving prematurely, the filing mechanics that produce avoidable remands, and the amount in controversy declaration built for a contested motion. Later sections handle the mandatory and discretionary exceptions with the burden allocation stated, jurisdictional discovery, mass actions and their exclusions, the second removal window, and what changes once the case stays in federal court. Closing sections give the plaintiff's checklist, the alternative removal statutes, and the fee exposure for getting it wrong. Every item is written so a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202612 min read

LitigationClass Actions

CAFA Jurisdiction and Class Action Removal: Amount in Controversy, Exceptions, and Mass Actions

The Class Action Fairness Act rewrote the jurisdictional rules for class litigation, and almost every fight about it is a fight about one of four things: the amount in controversy, one of the exceptions, whether the case is a mass action, and whether the removal was timely. This article works through the elements of CAFA jurisdiction and the removal machinery in section 1453, which strips away the forum defendant rule, the unanimity requirement, and the one-year limit. It then covers the amount in controversy after Dart Cherokee and Standard Fire, the mandatory and discretionary exceptions and who bears the burden on each, the carve-outs for securities and corporate governance claims, the mass action provisions and their peculiar limits, and the discretionary appellate review that makes a remand order reviewable when it otherwise would not be. A running example follows one defendant through a removal and a remand fight.

Casey Scott McKaySeptember 5, 202628 min read