Insights

Analysis from the front lines of IP & technology law.

Our attorneys write about the developments shaping intellectual property — from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.

LitigationDiscovery

Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege

Nonparty discovery is the only place in the federal rules where a litigant's need for evidence is balanced against the interests of someone with no stake in the case, and the balance is unusually protective: a written objection shifts the burden of going forward, significant expense must be shifted, and the issuing lawyer carries an affirmative and sanctionable duty of restraint. This toolkit runs the process from both sides — issuing a subpoena that will actually produce documents, and responding to one without spending more than necessary — and covers the sector-specific statutes that override Rule 45 entirely for communications providers, health care providers, financial institutions, and government agencies. It works from the issuing lawyer's side and the recipient's side in parallel, then addresses privilege, cost-shifting, and the statutes that bar production outright. A separate stage covers the statutes that bar production outright regardless of how the subpoena is worded.

Casey Scott McKayOctober 5, 202313 min read

CommercialContract

Force Majeure Notice Checklist: A Practical Checklist

A force majeure claim is won or lost on the notice and the record, not on the doctrine. Notice provisions are treated as conditions to relief, the deadlines are short, and the party claiming excuse bears the burden of showing that the enumerated event actually caused the failure and that it mitigated. This checklist covers the first forty-eight hours — read the notice provision before the force majeure clause, identify precisely which obligations are affected, and send a compliant notice — then the weeks that follow, where visible mitigation, a defensible allocation methodology among customers, and a contemporaneous file determine whether the claim survives. It also covers the response when a counterparty declares force majeure on you.

Casey Scott McKayOctober 4, 20238 min read

ArbitrationDamages

Damage Statistics: Arbitration

This guide explains how money actually moves in arbitration: what damages an arbitrator may award, why punitive damages are available but easily contracted away, and why the number an arbitrator writes is so much harder to undo than a jury verdict. It walks through the compensatory measures arbitrators apply, the special rules for punitive and exemplary damages after Mastrobuono v. Shearson, interest, and attorney's-fee shifting. It then turns to the back end of the process: confirmation and the famously narrow vacatur grounds of the Federal Arbitration Act, Hall Street Associates v. Mattel, the contested "manifest disregard" doctrine, and cross-border enforcement under the New York Convention. Throughout, it treats published "damage statistics" honestly, explaining what the available AAA, JAMS, and academic data can and cannot tell you, and why no one can responsibly quote a precise national average. It closes with worked hypotheticals, a practitioner's checklist mindset, an FAQ, and links to related mclaw.io resources.

Casey Scott McKayOctober 4, 202334 min read

Intellectual PropertyPatent

How to Read a Patent: Claims, Specification, and Prosecution History

A patent is a legal instrument disguised as a technical document, and almost everyone who picks one up reads it in the wrong order. This article teaches the right order. It walks through the front page and what each numbered field actually tells you, including the priority chain that fixes the effective filing date and the term adjustments that determine when the patent expires. It then explains the specification and the disclosure requirements of section 112, and turns to the part that matters most: the claims. It covers how a claim is structured, what the preamble and the transitional phrase do, the enormous difference between comprising and consisting of, how independent and dependent claims relate, and how to build a claim chart element by element. A long section explains claim construction under Phillips v. AWH, the hierarchy of intrinsic and extrinsic evidence, why the prosecution history often decides the case, and how prosecution history estoppel narrows what a patent can reach. It closes with means-plus-function claiming, indefiniteness after Nautilus, a worked reading of a hypothetical patent, a reading checklist, an FAQ, and related reading.

Casey Scott McKayOctober 3, 202325 min read

Labor and EmploymentContracts

Worker Classification Audit Checklist: A Practical Checklist

Misclassification is unusual among compliance problems because a single worker triggers exposure under four or five separate legal regimes at once, each applying its own test and each with its own agency. This checklist runs an audit that accounts for that. It starts by building the population and gathering the documents that will determine the answer, then applies the tests in the order that matters: the state ABC test where one applies, the FLSA economic reality test, the common law control test for tax and benefits, and the state-specific unemployment and workers compensation standards. Later phases cover the second classification question employers often forget, which is whether workers already classified as employees are correctly treated as exempt, and the practical mechanics of remediation, including reclassification without creating an admission and the voluntary programs that reduce back-tax exposure.

Casey Scott McKayOctober 1, 20239 min read

FinanceBankruptcy

Chapter 13 Bankruptcy: The Wage-Earner Plan, Lien Stripping, and the Discharge

Chapter 13 is the reorganization chapter for individuals with regular income, and it does two things Chapter 7 cannot: it stops a foreclosure and lets a homeowner cure arrears over years, and it lets a debtor keep property that would otherwise be liquidated. The price is a three- to five-year plan funded from disposable income, calculated under a formula that leaves less room for judgment than most debtors expect. The mechanics that decide whether a case is worth filing are the debt limits, the means-test-derived commitment period, the treatment of secured claims including the anti-modification rule for principal residences, and the priority claims that must be paid in full. This article works through eligibility, plan construction, confirmation, the life of a case, and the discharge that arrives at the end of it.

Casey Scott McKayOctober 1, 202325 min read

LitigationPre-Litigation Practice

Regulatory Investigations Toolkit

A civil investigative demand, an administrative subpoena, or agents at the reception desk each start a process in which the company's first week determines much of the outcome. Preservation failures become obstruction allegations, an uncounseled employee interview becomes a false statement charge, and a document production assembled without a privilege protocol waives protections that cannot be recovered. This toolkit runs the sequence: the first forty-eight hours by inquiry type, building the response team and preserving evidence, scoping and conducting the internal investigation under privilege, negotiating and executing the production, managing employees and parallel individual exposure, deciding whether and how to cooperate or disclose, and resolving the matter with remediation that actually addresses what went wrong. It closes with remediation, which is what regulators actually evaluate and what determines whether a monitorship is imposed.

Casey Scott McKaySeptember 30, 202315 min read

LitigationDiscovery

Internal Investigation and Upjohn Warning Checklist: A Practical Checklist

An internal investigation is the moment a company decides how much protection its findings will have, and most of that is determined in the first two days. This checklist covers the sequence that preserves privilege and produces a usable result: confirming who directs the investigation and why, scoping it in writing, issuing a hold, engaging consultants through counsel, giving and documenting Upjohn warnings at every interview, writing interview memoranda that qualify as opinion work product, reaching and recording findings, taking proportionate corrective action, and making the disclosure decision deliberately. It flags the recurring failure modes, including the investigation that begins in HR and is handed to legal later, and the forensic vendor retained by the business rather than by counsel. Used from the first phone call, it keeps the record clean enough that the company can later choose whether to waive privilege rather than discovering it never had any.

Casey Scott McKaySeptember 30, 20238 min read

CorporateCorporate Governance

Corporate Governance Toolkit: Boards, Committees, and Fiduciary Process

Governance is not a document set; it is a cadence. A board that meets on a schedule, receives materials in advance, surfaces conflicts before discussion, oversees the two or three risks that could destroy the company, and records enough of what happened to show that a judgment was exercised will satisfy essentially every fiduciary standard in American corporate law. This toolkit builds that cadence from the beginning: composition and charters, the meeting mechanics and minute practice that create the record, the conflict procedures that protect a related-party transaction, the oversight architecture that answers a Caremark claim, and the protective stack of exculpation, indemnification, advancement, and insurance. It closes with an annual calendar and a diagnostic for a board that already exists.

Casey Scott McKaySeptember 27, 202314 min read

Intellectual PropertyPatent Litigation

Patent Litigation: Design Patents

Design patents protect the way a product looks, not how it works, and litigating them is a craft unto itself. This guide walks judges, lawyers, and curious laypeople through the full life cycle of a design patent case: how a court "construes" a claim made of drawings, how the ordinary-observer test from Gorham v. White and Egyptian Goddess v. Swisa decides infringement, and how functionality and the post-LKQ obviousness standard threaten validity. It explains the eye-popping Section 289 "total profit" damages rule and the Supreme Court's Samsung v. Apple "article of manufacture" remand that reshaped it, plus willfulness, marking, injunctions, and the International Trade Commission. Worked examples and real Federal Circuit cases ground every doctrine. Read it before you assert or defend a single ornamental claim.

Casey Scott McKaySeptember 24, 202343 min read

CommercialConsumer Protection

Debt Collection and the FDCPA: What Collectors May Do and What You Can Do About It

Debt collection is one of the few areas of American law where an ordinary person holds substantial procedural leverage and almost never uses it. This article explains the architecture: who counts as a debt collector and who does not, the validation and dispute rights that shift the burden to the collector, the conduct rules and the standard courts apply to judge them, and the private right of action with fee shifting that makes those rules enforceable. It covers Regulation F and its limits on contact frequency and social media, time-barred debt and the traps in acknowledging it, credit reporting disputes under the FCRA, and the judgment-collection stage where exemptions determine what a creditor can actually take.

Casey Scott McKaySeptember 22, 202328 min read

Family LawDivorce

Divorce and Property Division: A Practical Guide

A divorce is a lawsuit that divides a household, and most of its outcome is determined by two things: what the property is characterized as, and what the parties can prove about it. This guide covers the process and the substance. It starts with the threshold questions of residency, grounds, and the automatic orders that take effect on filing, then the financial disclosure obligation that is the foundation of every subsequent decision. It works through property characterization and division under both community property and equitable distribution systems, including the tracing and commingling problems that decide most contested cases, and the assets that require specialized treatment: the marital home, retirement accounts and the QDRO, closely held businesses, and deferred compensation. Later sections address spousal and child support, custody and parenting plans, the tax consequences that change the value of every settlement term, and the process alternatives to litigation.

Casey Scott McKaySeptember 21, 202328 min read