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.
Fiduciary Duties of Directors and Officers: The Business Judgment Rule, Loyalty, and Caremark Oversight
Directors are not liable for bad outcomes, and that single sentence explains most of what the law of fiduciary duty does. The business judgment rule presumes that a disinterested, informed, good-faith board decision was proper, and the entire architecture of corporate litigation is built around whether a plaintiff can knock that presumption down. This article works through the three duties that matter—care, loyalty, and the oversight obligation that grew out of Caremark—and shows where each one actually breaks in practice: uninformed sale processes, conflicted transactions that skipped a cleansing procedure, and compliance systems that never existed for a risk central to the business. It also covers exculpation, indemnification, advancement, and D&O coverage, the protections that determine whether a breach finding costs a director money or costs an insurer money, and it addresses closely held companies and LLCs, where the rules differ in ways that surprise people who learned them from public-company cases.
Class Actions Under Rule 23: Certification, Settlement, and Defense Strategy
A class action lets one lawsuit resolve claims for thousands of people who will never appear in court, which is either an indispensable tool for aggregating small harms or a machine for manufacturing settlement pressure, depending on which side of the caption you occupy. Both descriptions are sometimes true. This article explains how Rule 23 actually works, from the four prerequisites of Rule 23(a) through the three categories of Rule 23(b), with attention to the doctrinal fights that decide most cases: the commonality standard after Wal-Mart v. Dukes, the damages-model requirement of Comcast v. Behrend, the treatment of individualized issues and representative proof after Tyson Foods, ascertainability and the circuit split over it, and the standing problem for uninjured class members after TransUnion v. Ramirez. It covers settlement approval under the amended Rule 23(e), the role and regulation of objectors, interlocutory review under Rule 23(f), and federal jurisdiction under the Class Action Fairness Act. It then turns to strategy for both sides, including the arbitration and class waiver defense that has reshaped consumer litigation. It closes with checklists, a worked example, an FAQ, and related reading.
Series A Financing Closing Checklist: A Practical Checklist
A Series A closing is a document assembly exercise with a small number of hard dependencies and a long list of items that must be complete before funds are wired. Most delays come from the same places: a capitalization table that does not reconcile, missing invention assignment agreements from early contractors, an unfiled 83(b) election, and stockholder consents that take longer to gather than anyone planned. This checklist runs the closing from signed term sheet through post-closing obligations, organized so that the long-lead items are identified first, and it flags the securities filings and corporate housekeeping that must follow the wire. This checklist sequences the closing set, the corporate approvals, and the post-closing filings that must follow within days rather than weeks.
Copyright Registration for Derivative Works
A derivative work is a new work built on top of one or more preexisting works—translations, film adaptations, remixes, sequels, annotated editions, and new software versions. This guide explains exactly what a derivative work is under 17 U.S.C. § 101, how § 103 confines the copyright in a derivative to the new material the author actually added, and why a derivative work can never extend the life of the underlying copyright. It walks step by step through registering a derivative work with the U.S. Copyright Office—how to complete the "limitation of claim," "material excluded," and "new material included" fields so an application sails through. It covers the originality threshold under Feist and Durham Industries, the "thin copyright" problem, the § 106(2) adaptation right, the unforgiving § 103(a) rule that a derivative must be lawfully made, and the accuracy obligations the Supreme Court addressed in Unicolors v. H&M. Worked examples across film, music, software, and visual art, a model application walkthrough, an FAQ, and cross-links to related copyright topics round it out.
Personal Guaranty Review Checklist: A Practical Checklist
A personal guaranty is usually presented at a closing table with the loan proceeds waiting, and it is signed without negotiation because the alternative appears to be no loan. That is frequently wrong: several terms are negotiable, a few are not, and one federal rule can void the document entirely. This checklist gives an owner and their counsel a structured review—what the guaranty actually covers, whether it is capped or unlimited, what defenses have been waived and which survive waiver, whether the spousal signature was lawfully required, and how the guarantor exits when they leave the business. It also includes the lender's drafting checklist, because the same document is read from both sides.
Piercing the Corporate Veil: Keeping Limited Liability Limited
Limited liability is the reason people form corporations and limited liability companies, and it works almost all of the time. Almost. Courts will disregard the entity and reach the owners where the entity was operated as a mere instrumentality of its owners and where respecting the separation would sanction a fraud or produce an inequitable result. This article explains how that doctrine actually operates: the two-part test applied in most states, the specific factors courts weigh and which of them do the real work, why undercapitalization alone rarely suffices, and why commingling of funds and failure to observe formalities are the findings that most often sink a defense. It covers the important structural point that a parent is more often held liable for its own conduct under Bestfoods than through veil piercing, the growing acceptance of reverse veil piercing in Delaware and California, the special treatment of limited liability companies whose statutes expressly excuse many formalities, and the related doctrines of successor liability, single business enterprise, and personal guarantees. It closes with a practical corporate hygiene program, a worked example, an FAQ, and related reading.
Open Source for the Law Firm: A Practical Guide
Open source software lets a law firm own its tools, its data, and its destiny—often at a fraction of the cost of proprietary suites—but only if the firm pairs the technology with the ethical diligence the rules of professional conduct now demand. This action-oriented guide walks through a realistic open source stack for a solo or small firm, from the operating system to practice management, documents, email, ediscovery, accounting, and security. It maps each technology choice onto the lawyer's duties of technology competence (ABA Model Rule 1.1, Comment 8), confidentiality (Model Rule 1.6(c)), and supervision (Rules 5.1 and 5.3), drawing on ABA Formal Opinions 477R and 483 and recent state ethics opinions. It explains how open source licenses (MIT, Apache, GPL, AGPL) actually work, gives an honest total-cost-of-ownership comparison, and treats data portability as a structural hedge against vendor lock-in. It closes with a phased, low-drama migration plan a firm can actually execute. The companion piece, running a law firm on open source technology, covers the philosophy and full toolchain in more depth; this is the shorter, do-it-this-quarter version.
Registering a Copyright in Photographs: A Practical Checklist
Photographs are among the most-copied and least-registered works on earth, and the group-registration options exist precisely so a working photographer can protect hundreds or thousands of images affordably. This checklist walks a photographer or adviser through classifying images as published or unpublished, confirming ownership (the photographer, not the client, owns by default), choosing between the GRPPH and GRUPH group options, preparing the all-important title list, and submitting deposits that match. It explains the timing rules that drive statutory damages under Section 412, the metadata and copyright-management-information protections of DMCA Section 1202, and the common mistakes that delay registrations. Verify current fees and group caps at copyright.gov before filing.
The UCC Article 2 Sale of Goods: Formation, Warranties, Risk of Loss, and Remedies
Almost every business buys and sells goods, and almost none of them read the default rules that govern when their paperwork runs out. This article explains Article 2 as it actually operates. It covers scope and the goods-versus-services distinction that determines whether Article 2 or common law applies, then formation: the merchant rules, the statute of frauds and its exceptions, firm offers, and the battle of the forms under 2-207 that decides whose terms govern when a purchase order meets an acknowledgment. It works through express and implied warranties and the specific language required to disclaim them, limitations of remedy and the failure-of-essential-purpose doctrine that can void a carefully drafted cap. Later sections cover performance, the perfect tender rule and the right to cure, rejection and revocation of acceptance, risk of loss and delivery terms, excuse by impracticability, and the buyer and seller remedy structures, with a worked example, a drafting checklist, and an FAQ.
Franchise Law Basics: The FTC Rule, the FDD, and State Registration
A franchise is not defined by what the parties call their relationship. Under the FTC Franchise Rule, three elements create one: a trademark license, significant control over or assistance with the franchisee's method of operation, and a required payment of at least five hundred dollars in the first six months. Businesses that never intended to franchise create franchises constantly through licensing programs, dealer networks, and multi-unit expansion arrangements, and the consequences include federal enforcement, state registration violations, and in some states a private right of rescission. This article explains the definition element by element, walks through the twenty-three items of the Franchise Disclosure Document and which ones matter most, and covers the timing rules that govern when disclosure must occur. It then addresses the state layer: registration states, filing states, exemptions, and the franchise relationship statutes that restrict termination and nonrenewal without good cause and that void contrary choice of law and forum provisions. Sections on the accidental franchise and how to avoid it, business opportunity statutes, joint employer exposure, and the franchisee's side of the transaction follow, with a compliance checklist, a worked example, an FAQ, and related reading.
Environmental Liability for Businesses and Property Owners: CERCLA, RCRA, and Diligence
Environmental liability is strict, joint and several, and retroactive, which means a business can be responsible for contamination it did not cause, did not know about, and that was lawful when it occurred. This article explains the regimes that produce that result and the defenses that limit it. It covers CERCLA in detail, including the four categories of potentially responsible parties, the arranger and operator theories that reach beyond the current owner, and the landowner defenses that depend entirely on having conducted all appropriate inquiries before acquisition. It then covers RCRA's generator obligations and corrective action authority, its citizen suit provision, and the Clean Water Act and Clean Air Act obligations that most often surprise ordinary operating businesses. Later sections address transactional diligence and allocation, brownfields and state voluntary cleanup programs, environmental insurance, successor liability, and emerging contaminants including PFAS.