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.

CorporateMergers and Acquisitions

Escrows, Holdbacks, and Purchase Price Security: Who Holds the Money and Who Gets It Back

An escrow is the simplest idea in deal practice and one of the most frequently mis-drafted: money sits with a neutral party until something happens, and the agreement decides what that something is. This article explains what escrows are actually for, how indemnity, adjustment, and special-issue escrows differ, and why the release mechanics generate more disputes than the underlying claims do. It works through the escrow agent's deliberately narrow role, the claim notice and objection sequence that governs release, the interaction with representation and warranty insurance that has reshaped escrow sizing, and the tax and unclaimed property questions nobody raises until later. Worked examples show how a well-drafted notice provision decides a fight over eight figures. It closes with the alternatives to escrow — holdbacks, setoff, letters of credit, and guarantees — and when each is better.

Casey Scott McKaySeptember 5, 202628 min read

CorporateMergers and Acquisitions

Escrow Toolkit: Escrow Agreements, Joint Instructions, and Claim Notices

This toolkit provides the operative escrow documents in drafting-ready form with annotations explaining the failure each provision prevents. It includes core escrow agreement clauses on claims, objections, retained amounts, and releases; a claim notice and an objection notice; a joint written instruction; a Seller Representative appointment with expense fund and exculpation; and an escrow facts memo for circulation at closing. A consistency-review worksheet and a set of alternative security instruments complete the set. The annotations focus on the handful of provisions that determine whether escrowed money is ever recovered.

Casey Scott McKaySeptember 5, 202612 min read

CorporateMergers and Acquisitions

Escrow Agreement Review Checklist

An escrow agreement is short enough to read in twenty minutes and consequential enough to decide an eight-figure claim, and most of its failures are consistency failures with the purchase agreement rather than drafting failures on its own terms. This checklist reviews the agreement clause by clause, then runs the cross-document comparison that catches the errors a single-document review cannot. It covers agent selection diligence, funding and verification, the claim and release mechanics, tax and reporting requirements, and the administration calendar to be built at closing. It is written for use with both documents open.

Casey Scott McKaySeptember 5, 20268 min read

CommercialEquipment Finance

Equipment Leasing Toolkit: Lease Schedules, Hell or High Water Clauses, and Remedy Provisions

This toolkit supplies the operative documents of an equipment lease in drafting-ready form, annotated with the characterization or enforcement consequence each provision carries. It provides a lease schedule with the terms that determine whether the transaction is a lease or a loan, a finance lease designation with the disclosure limb satisfied, a warranty disclaimer, and a hell or high water clause with the limits identified. It supplies an acceptance certificate with the lessee-side conditions worth negotiating, a stipulated loss value schedule that credits disposition proceeds, precautionary filing language with the backup security grant, and end-of-term provisions including a fair market value appraisal mechanism. Remedies, a landlord waiver, and a lessee estoppel certificate complete the set.

Casey Scott McKaySeptember 5, 202617 min read

CommercialEquipment Finance

Equipment Leasing and UCC Article 2A: True Leases, Disguised Security Interests, and Hell or High Water

An equipment lease is either a lease or a secured loan wearing a lease's clothing, and almost everything that matters follows from which one it is. This article explains the statutory test that decides it, why the bright-line rule catches more transactions than lessors expect, and what the economic realities analysis adds when the bright-line test is not met. It then covers Article 2A's distinctive features: the finance lease, which turns a lessor into a funding source with no warranty exposure, and the hell or high water clause that makes rent obligations absolute. It works through the lessor's remedies, the perfection and precautionary filing practice that protects against recharacterization, and the treatment of leases in bankruptcy, where the distinction between a true lease and a security interest determines everything. Worked examples follow two nearly identical transactions to opposite outcomes.

Casey Scott McKaySeptember 5, 202629 min read

CommercialEquipment Finance

Equipment Lease Characterization Checklist

Whether an equipment lease is a lease or a secured loan is decided by a statutory test that ignores the parties' labels, and almost everything else follows from the answer. This checklist runs the characterization analysis in the order the Code requires, then covers the structuring decisions that produce the intended result — term against economic life, option pricing, and the residual assumption with genuine risk. It then runs the documentation: the finance lease disclosure requirement, the acceptance mechanics, the insurance and casualty provisions, and the perfection steps including the precautionary filing and lien search every lessor should complete. Separate sections cover the lessee's negotiation priorities, the end-of-term deadlines that cause most losses, and enforcement on default.

Casey Scott McKaySeptember 5, 20268 min read

Intellectual PropertyEntertainment and Media

Entertainment Licensing Toolkit: Royalty Schedules, Approval Processes, and Audit Provisions

This toolkit collects the drafting materials that decide how much money a licensing programme actually produces and whether anyone can prove it. It provides a royalty schedule with the deduction list written as an exhaustive enumeration, a reserve-against-returns provision with a cap and a liquidation timetable, and an audit clause with the cost-shifting trigger that makes audits worth running. Approval architecture is set out stage by stage with response periods and deemed outcomes, alongside the style guide contents that reduce approval volume. Merchandising provisions cover the minimum guarantee against minimum performance, quality control, and sell-off. Reversion and acceptance language is included for publishing deals, together with a programme administration framework and a signature-day calendar.

Casey Scott McKaySeptember 5, 202614 min read

LitigationRemedies

Enforcing a Court Order: A Practical Guide

This guide walks through enforcing a court order from the first sign of non-compliance to the sanctions hearing, in the order the work happens. It starts with reading your own order as a hostile reader would, because the specificity requirement defeats more contempt motions than any factual dispute, and moves to the compliance demand that resolves a large share of these situations for the cost of an afternoon. It then covers post-judgment discovery in aid of enforcement, deciding between clarification, enforcement, and contempt, identifying the individuals and nonparties who are actually bound, and building a record that satisfies the clear and convincing standard. Later steps address choosing the sanction you want, the hearing, defending a contempt motion, appeals and stays, and enforcing against a judgment-proof or foreign respondent. A closing step covers drafting the next order so this is easier.

Casey Scott McKaySeptember 5, 202628 min read

CorporateEmployee Benefits

Employee Stock Ownership Plans: Valuation, Fiduciary Duty, and the Leveraged ESOP Transaction

An employee stock ownership plan is a retirement plan that is required to invest primarily in the employer's own stock, which makes it the only qualified plan built on a concentrated position and the only one whose central transaction is a purchase from the people who control the company. This article explains the structure that follows from those two facts: the statutory exemption that makes the purchase lawful, the adequate consideration requirement that is the exemption's condition, the independent trustee whose process determines whether the condition is met, and the valuation that is both the deal price and the fiduciary defense. It works through a leveraged transaction from term sheet to closing, covers the tax provisions that drive the economics, and explains the repurchase obligation that becomes the sponsor's principal long-term liability. It closes with the enforcement posture and what a defensible file contains.

Casey Scott McKaySeptember 5, 202629 min read

ArbitrationInternational Arbitration

Emergency Arbitrators and Interim Measures: Getting Urgent Relief Before a Tribunal Exists

An arbitration agreement is a promise to resolve disputes through a tribunal that does not yet exist, which leaves a gap in the weeks or months before it is constituted. This article explains the two ways that gap is filled: emergency arbitrator procedures under institutional rules, and applications to national courts for provisional relief in aid of arbitration. It covers what emergency arbitrators can and cannot do, the standards they apply, how quickly they act, and the difficult question of whether their decisions are enforceable — which turns on whether an emergency decision is an award. Court applications are addressed alongside, including the doctrine that such applications do not waive the right to arbitrate, the standards courts apply, and the situations where only a court will do. Separate sections cover the categories of relief actually sought, security for costs and for the claim, and the tribunal's own powers once constituted. Worked examples follow an asset-preservation application, an emergency arbitration over a terminated distribution agreement, and an unsuccessful application.

Casey Scott McKaySeptember 5, 202628 min read

ArbitrationInternational Arbitration

Emergency Arbitration Application Checklist

This checklist runs an urgent arbitration application from the first hour through confirmation by the constituted tribunal. It opens with the six triage questions that determine forum and viability, then the decision whether to apply at all and the standstill letter that often resolves the matter more cheaply. Evidence sections cover the chronology exhibit that answers the delay argument and the documentary proof of irreparable harm that decides most applications. Drafting sections cover the operative order, the fallback, and the security proposal. Respondent sections set out the defences that work in a four-day response window. Later sections cover concurrent court applications and how to run them without prejudice, enforcement where compliance fails, confirmation by the tribunal, and the clause provisions to fix afterward.

Casey Scott McKaySeptember 5, 20268 min read

CorporateMergers and Acquisitions

Earnouts and Post-Closing Purchase Price Adjustments: Drafting, Measuring, and Fighting About Them

An earnout bridges a valuation gap by deferring part of the price until the future proves someone right, and a purchase price adjustment fixes the price to the balance sheet the buyer actually received. Both are mechanisms for allocating uncertainty, and both generate a disproportionate share of post-closing litigation. This article explains why: the accounting standard is usually ambiguous, the efforts obligation is usually vague, and the dispute mechanism is usually a hybrid that neither side fully understands. It works through the Delaware and federal case law on implied covenants and efforts clauses, the accounting principles hierarchy that Chicago Bridge made famous, the design of an independent accountant determination, and the tax consequences that follow deferred consideration. It closes with drafting that actually prevents the fight.

Casey Scott McKaySeptember 5, 202631 min read