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.

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

Intellectual PropertyTrademark

Navigating the Maze of Trademark Confusion: Key Considerations for Brand Owners

Likelihood of confusion is the central question in nearly every trademark infringement dispute, but the doctrine is far richer and more circuit-dependent than a simple "are the marks similar" inquiry suggests. This article explains the multifactor tests applied by the federal courts and the Trademark Trial and Appeal Board -- including the Second Circuit's Polaroid factors, the Federal Circuit's DuPont factors, and the Ninth Circuit's Sleekcraft factors -- and walks through each factor with worked examples. It examines the recognized variants of confusion (direct, reverse, sponsorship, initial-interest, and post-sale), the role of consumer sophistication, secondary liability for those who enable infringers, and how survey evidence in the Eveready and Squirt formats is built and attacked. It addresses dilution of famous marks under the Trademark Dilution Revision Act, the special problems of keyword advertising and the digital marketplace, the impact of artificial intelligence on brand selection and clearance, a comparative look at how the European Union and China analyze confusion, the Supreme Court's 2023 decision in Jack Daniel's v. VIP Products narrowing the Rogers test, and the remedies and defenses that decide what a confusion finding is actually worth. It closes with a practical brand-protection program that brand owners can implement before a dispute ever arises.

Casey Scott McKaySeptember 18, 202361 min read

CommercialGeneral Commercial

Distribution, Reseller, and Channel Partner Agreements: A Practical Guide

Selling through partners multiplies reach and multiplies risk, because a distributor is simultaneously a customer, a competitor for margin, a representative of the brand, and a potential plaintiff when the relationship ends. This guide covers the agreement that governs all of that. It starts with the structural choice between a distributor who buys and resells, an agent who solicits on the supplier's behalf, and the hybrid arrangements in between, each with different tax, liability, and antitrust consequences. It then works through appointment and exclusivity, the pricing and incentive architecture that determines channel behavior, the ordering and supply mechanics, and the intellectual property and end-user terms that must flow down. Later sections address the antitrust constraints on channel restrictions, the dealer protection and franchise statutes that can convert a routine termination into a statutory violation, and the termination and transition provisions that decide what happens to the customers.

Casey Scott McKaySeptember 18, 202326 min read

CommercialGeneral Contract and Boilerplate

Contract Lifecycle Toolkit: From Term Sheet to Termination

A contract has a life longer than the negotiation that produced it, and most of the value and most of the risk are realized after signature by people who never read it. This toolkit follows a commercial agreement across its whole life. It starts with the term sheet and the binding-versus-non-binding problem, moves through formation questions that decide whose form governs, then works clause by clause through the provisions that determine what happens when something goes wrong: scope, payment, warranties, indemnity, liability caps, insurance, and termination. Later stages cover the operational half that companies neglect entirely: where signed contracts live, who tracks the obligations they impose, how renewals and price escalators are caught before they run, and what to do in the first week of a dispute, including the notice and cure mechanics that decide whether a termination is lawful.

Casey Scott McKaySeptember 17, 202316 min read

Labor and EmploymentInternal Investigations

Conducting a Workplace Harassment Investigation: A Practical Guide

A workplace investigation is a legal proceeding conducted by non-lawyers under time pressure, and its quality determines whether an employer has a defense or a document that will be read to a jury. This guide covers the process end to end: why the investigation matters legally and what the Faragher-Ellerth defense actually requires, how to receive and triage a complaint, what interim measures are appropriate and which create retaliation exposure, who should investigate and how privilege works, how to plan and conduct interviews, how to assess credibility and make findings, what belongs in a report and what does not, and how to close the loop with remedial action and follow-up. It also addresses the harder situations: anonymous complaints, executive respondents, conduct that may be criminal, and unionized workforces. The recurring lesson is that promptness, independence, and a report written as though a jury will read it are what turn an investigation into a defense rather than an exhibit.

Casey Scott McKaySeptember 16, 202325 min read