Legal 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.
Wage and Hour Law Under the FLSA: Overtime, Exemptions, and Off-the-Clock Work
Wage and hour law produces more employment litigation than every discrimination statute combined, and almost all of it is avoidable. The Fair Labor Standards Act requires a minimum wage and overtime at one and a half times the regular rate for hours worked over forty in a week, and it exempts a narrow set of employees who satisfy both a salary test and a duties test. This article explains how those pieces actually work: how to compute the regular rate and what must be included in it, why the salary basis test defeats employers who make improper deductions or pay a day rate, and why job titles are legally irrelevant to the duties analysis. It works through the executive, administrative, professional, computer, and outside sales exemptions and the highly compensated shortcut, including the Supreme Court's decision in Helix Energy v. Hewitt on day rates. It then addresses the off-the-clock claims that drive most litigation, including the Portal-to-Portal Act, donning and doffing, integral and indispensable activities after Integrity Staffing v. Busk, remote work, and the burden-shifting rule of Anderson v. Mt. Clemens Pottery that punishes employers with bad records. Sections on recordkeeping, collective actions, liquidated damages, willfulness, and the state law overlay follow, with an audit checklist, a worked example, an FAQ, and related reading.
Multidistrict Litigation and Mass Torts: How Thousands of Cases Become One Proceeding
Multidistrict litigation now accounts for a majority of the federal civil docket, and almost none of what happens in it appears in the Federal Rules. This article explains the machinery: how the Judicial Panel decides whether to centralize, what a transfer judge can and cannot do, how leadership is appointed and paid, how plaintiff fact sheets and census registries replace ordinary discovery, how bellwether trials are selected and what they are actually for, and how global settlements are structured and administered. It covers the doctrinal limits established by Lexecon and Gelboim, the general causation gatekeeping that ends entire litigations, and the ethical constraints on aggregate settlement that bind every lawyer with a book of cases.
Copyright vs. Trademark vs. Patent vs. Trade Secret: A Practical Guide
"Intellectual property" is not one thing but four separate legal regimes—copyright, trademark, patent, and trade secret—each built on a different statute, protecting a different kind of asset, arising in a different way, lasting a different length of time, and tested for infringement by a different question. People confuse them constantly, and the confusion is expensive. This guide lays the four regimes side by side along six axes—subject matter, source of the right, term, registration, the infringement test, and remedies—anchored in the Copyright Act, the Lanham Act, the Patent Act, and the Defend Trade Secrets Act. It then explains the "channeling" doctrine that keeps the regimes in their lanes, drawing on Baker v. Selden, the Sears/Compco pair, and Dastar v. Twentieth Century Fox, so you can see not just how the regimes differ but why courts police the borders between them. A worked example walks one product—a smart fitness watch—through all four forms of protection at once. The piece closes with a decision framework, an FAQ, and practical takeaways for owners who want to map each intangible asset to the right tool.
Responding to Requests for Production Checklist: A Practical Checklist
Requests for production under Federal Rule of Civil Procedure 34 are the workhorse of modern civil discovery, and the quality of a party's response often determines whether a case is won, settled, or sanctioned. This checklist walks responding counsel through the disciplined sequence: docketing the 30-day deadline, issuing or confirming the litigation hold, mapping each request to a claim or defense, negotiating scope and an ESI protocol (including a Rule 502(d) clawback order), collecting and reviewing ESI defensibly, drafting request-by-request responses that object with specificity and—critically—state whether documents are being withheld under Rule 34(b)(2)(C), producing in the agreed format, and supplementing under Rule 26(e). Each phase is paired with the reason it matters and the traps that draw sanctions, anchored in the 2015 amendments and the case law killing the boilerplate objection. The goal is a clean, reasonable, well-documented process a court will credit.
Remote and Hybrid Workforce Toolkit
Remote and hybrid work raises two distinct sets of questions that companies routinely conflate. The management questions—how people collaborate, how performance is measured, whether hybrid schedules are coordinated—are real and are not legal problems. The legal questions turn almost entirely on one fact: where the employee physically works, which determines the applicable employment law, the payroll registrations, the workers compensation coverage, and frequently the company's tax nexus. This toolkit addresses both. It covers eligibility and approval, the approved work locations control and the reporting obligation that makes it enforceable, timekeeping and pay for remote non-exempt employees, equipment and expenses, home workspace safety, security and monitoring, accommodation requests, international work, and the performance and inclusion practices that determine whether the arrangement actually works.
Willfulness Toolkit: Notice Letter Responses, Opinion of Counsel Engagements, and Read Factor Analyses
This toolkit collects the working papers of a willfulness dispute, each introduced by its purpose, owner, and timing and followed by drafting commentary tied to the governing authority. The recipient's templates cover a letter intake form, a communications instruction memo, a targeted litigation hold, an acknowledgment letter and a substantive response letter, an opinion-of-counsel engagement letter with a scope schedule, a design-around record, a privilege waiver map built on In re EchoStar, and an insurer tender letter. The patent owner's templates are a notice letter built to satisfy 35 U.S.C. 287 and support willfulness, and complaint paragraphs pleading knowledge. The litigation templates are an outline for a motion to dismiss willfulness allegations, an advice-of-counsel election notice, a motion in limine and jury instruction based on 35 U.S.C. 298, and a Read factor worksheet for the enhancement briefing. A running fictional example involving a machine-vision camera maker and a competitor, a timing tracker, and practical takeaways tie the templates together.
Comprehensive Guide to Patent Infringement Litigation: From Summary Judgment Denial to Post-Trial
This guide walks through the full life cycle of a United States patent infringement lawsuit, from where it can be filed through the final appeal, using a single running hypothetical to make each stage concrete. It explains subject-matter jurisdiction and venue after TC Heartland and In re Cray, modern pleading standards following the abrogation of Form 18, claim construction under Markman and Phillips, and the proof of literal infringement, infringement under the doctrine of equivalents, and indirect and divided infringement. It then turns to invalidity and the interplay between district court litigation and inter partes review at the Patent Trial and Appeal Board, summary judgment, and why a denial channels a case toward trial. The trial discussion covers infringement, validity, willfulness under Halo v. Pulse, and damages under Georgia-Pacific and Panduit, including apportionment, price erosion, convoyed sales, and enhancement. Finally, the article addresses Rule 50 motions and preservation, new trials and remittitur, permanent injunctions and ongoing royalties under eBay v. MercExchange, attorney's fees, and appeal to the Federal Circuit. Every term of art is explained in plain language for judges, practitioners, and non-lawyers alike.
Responding to a Website Accessibility Demand Letter or Lawsuit: A Practical Guide
This guide takes a business and its lawyer through the response to a website accessibility demand letter or Title III lawsuit, from the day it arrives to the point where the business is no longer an easy target. It opens with the decision points that shape everything else: whether a complaint has been filed, which law applies, whether the claim is true, and whether this is one letter or a campaign. Fifteen numbered steps then cover deadlines, preservation, investigating the plaintiff and firm, standing and forum analysis, insurance tender, a privileged audit, a remediation plan, the first response, the fight-or-settle decision, Rule 12 motions, mootness strategy, Unruh and New York exposure, settlement terms, consent decree terms, and repeat-target protection. Each step explains what to do, why, the governing authority, pitfalls, timing, and cost. A timeline and cost table, a worked example involving an online-only retailer sued in New York and threatened in California, notes for plaintiffs' counsel, common mistakes, an FAQ, and takeaways close the guide.
Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law
The right of publicity was invented in 1953 to solve a problem about baseball cards. Seventy years later it is the doctrine everyone reaches for when a synthetic version of a person's face or voice appears in a commercial, a song, or a political advertisement, and it is straining under the weight. This article explains the doctrine and the new statutes built on top of it. It covers the origins of the right in privacy law and its transformation into a transferable property right, the state-by-state variation in what is protected and for how long, the First Amendment defenses including the transformative use test and the Rogers framework, and copyright preemption. It then addresses the digital replica statutes: Tennessee's ELVIS Act, which added voice to the protected attributes and reached tools whose primary purpose is producing unauthorized replicas; California's 2024 legislation governing digital replicas in performer contracts and the estates of deceased personalities; New York's law addressing digital replicas of deceased performers and synthetic performers; and the federal proposals and enacted statutes addressing nonconsensual intimate imagery and impersonation. A long section covers college athlete NIL after Alston and the House settlement, and a practical section covers contracting for digital replicas, consent, and platform takedowns. It closes with checklists, a worked example, an FAQ, and related reading.
Trust Administration and the Trustee's Duties
A trustee holds property for someone else under the most demanding standard the law imposes, and most trustee liability arises not from bad investments but from failing to do administrative things nobody explained. This article covers what a trustee actually has to do: the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them; how the prudent investor rule changed portfolio management and why an undiversified concentrated position is the most common surcharge case; how discretionary distribution standards work and what documentation supports them; the accounting and reporting obligations that also start the limitations clock; the modern flexibility devices—decanting, nonjudicial settlement agreements, directed trusts, and trust protectors; and the tax rules that make timing distributions worth real money. It covers the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them, the prudent investor rule and the concentrated-position cases it generates, discretionary distribution standards, and the accounting obligations that also start the limitations clock. Later sections address the modern flexibility devices—decanting, nonjudicial settlement agreements, directed trusts, and trust protectors—and the tax rules that make distribution timing worth real money.
The LKQ Decision: A Seismic Shift in Design Patent Obviousness Analysis
On May 21, 2024, the en banc Federal Circuit handed down its most consequential design patent decision in decades, overruling the forty-year-old Rosen-Durling test for obviousness and replacing it with the flexible, fact-intensive Graham framework that has long governed utility patents. LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024), arose from a dispute over a Chevrolet Equinox front fender, but its reach extends to every industry that relies on design patents—consumer electronics, automotive, fashion, housewares, and industrial design. This guide traces the legal and procedural history of LKQ, dissects the new four-factor framework, examines the USPTO's rapid response, and surveys the first two years of post-LKQ case law through 2026, including the PTAB's continued reluctance to institute review and the Federal Circuit's signal that primary references remain essential. It assesses practical implications for applicants, in-house counsel, litigators, and designers, and shows how the decision raises the strategic value of trade dress, copyright, and utility patents as layered protection. It closes with a checklist, an FAQ, and strategic guidance for the 2026 landscape, where the early data confirms evolution rather than collapse: allowance rates have held steady and aggressive obviousness attacks still demand rigorous, non-hindsight proof.
Responding to a Government Subpoena or Civil Investigative Demand: A Practical Guide
A subpoena or civil investigative demand arrives without warning and starts several clocks at once, most of which are shorter than they appear. This guide walks the response from the first hour through production and beyond. It covers what to do immediately, including the litigation hold that must issue before anyone reads the demand carefully, and how to determine what kind of process you have received and what that tells you about the investigation. It then covers scope negotiation with the government, which is expected and almost always productive, the mechanics of collection and production, privilege review and logging, and the special problems presented by individual employees who may need separate counsel. Later sections address parallel civil and criminal proceedings, the decision whether to cooperate or contest, obstruction risk, and what a company should have done before any of this arrived.