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.

CorporateSecurities

Digital Assets and Securities Regulation: Howey, Custody, Exchanges, and Stablecoins

Whether a token is a security is the wrong first question, and asking it that way is how companies get the answer wrong. This article works through what the Howey inquiry actually asks, why the answer attaches to the transaction rather than to the asset, and how the analysis changes as a network matures. It then covers the questions that follow from the answer and the questions that arise regardless: exchange and broker-dealer registration, custody and the rules that govern holding someone else's assets, the commodity-side jurisdiction that reaches tokens that are not securities, money transmission licensing and the Bank Secrecy Act obligations that attach to almost everyone in the business, and what a stablecoin issuer is actually promising. It closes with what a defensible token analysis memorandum contains and why writing one is worth more than the conclusion it reaches.

Casey Scott McKaySeptember 5, 202628 min read

CorporateSecurities

Digital Asset Toolkit: Token Analyses, Custody Terms, and Disclosure Language

This toolkit supplies the documents a digital asset project actually needs, ordered by when the work must happen rather than by how interesting the question is. It opens with a money transmission determination worksheet, because that analysis carries criminal exposure and the longest remediation timeline, then a transaction inventory and a Howey worksheet applied per transaction rather than to the asset. It provides a decentralization scorecard with measurable dimensions, a token analysis memorandum outline written for a hostile reader, a whitepaper review checklist and model risk factors, and a communications policy. Later tools cover the treasury sale and insider trading policies, a listing committee analysis form, custody terms and a three-document reconciliation, stablecoin reserve disclosure, and a launch readiness sign-off. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202618 min read

CorporateSecurities

Digital Asset Compliance Checklist: A Practical Checklist

This checklist runs a digital asset project from the determination that carries criminal exposure through launch and ongoing monitoring, in the order that reduces risk fastest. It opens with money transmission and Bank Secrecy Act status, because that analysis applies most broadly and takes the longest to remediate, then entity and treasury structure. The securities work follows as a transaction-by-transaction analysis rather than a single question about the token, with separate screens for notes, commodity-side exposure, and state law. Later sections cover disclosure, the communications policy that governs the largest category of adverse evidence, distributions and airdrops, treasury and insider trading policies, and launch readiness. Closing sections give the intermediary's listing committee, custody, and stablecoin checklists, plus incident response and an annual review. Every item is written so a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202611 min read

CorporateCompliance and Investigations

Designing and Testing a Compliance Program: A Practical Guide

This guide builds a compliance program from a blank page and then tests it, in the sequence the work actually happens. It starts with the risk assessment that everything else must trace to, explains how to convert risks into controls with owners rather than policies with page numbers, and shows how to design a reporting channel that competes with the government's whistleblower programs. The middle sections cover the testing and monitoring work that separates a real program from a documented one, including sampling, reperformance, and analytics. The last sections cover what to do when something is found: the investigation protocol, root cause analysis, remediation design, discipline and compensation consequences, and the board reporting that makes oversight provable years later.

Casey Scott McKaySeptember 5, 202629 min read

LitigationArbitration

Designing a Consumer Arbitration Program That Survives Mass Filings: A Practical Guide

A step-by-step guide to building and operating a consumer or worker arbitration program that can absorb thousands of simultaneous filings without collapsing. It covers the threshold decision of whether to keep an arbitration clause at all, the clause architecture that courts have enforced, the operational capabilities that matter more than the drafting, the ninety-day response plan when filings arrive, the segmentation and resolution strategy, and the governance that keeps the program current. It includes worked scenarios with named parties, budgets, staffing, and the mistakes that turn a manageable event into a crisis. Separate sections address the employment and gig-worker variant, working with the process arbitrator, and a biennial tabletop exercise. The guiding principle throughout is to design for orderly volume rather than for deterrence.

Casey Scott McKaySeptember 5, 202628 min read

LitigationFederal Practice

Declaratory Relief Toolkit: Complaints, Jurisdictional Briefing, and Discretionary Dismissal

Working templates and model language for declaratory judgment practice on both sides of the caption. It includes a declaratory complaint skeleton with controversy allegations, a covenant not to sue drafted to actually moot a case, a standstill agreement, a Wilton discretionary-dismissal brief outline, an anticipatory-filing timeline exhibit, a demand letter drafted to avoid triggering a declaratory filing, and a client decision memorandum. Each item carries drafting notes explaining what the language is doing and where it commonly fails. Adapt the language to the matter; do not use it unedited.

Casey Scott McKaySeptember 5, 202616 min read

LitigationFederal Practice

Declaratory Judgment Checklist: A Practical Checklist

A working checklist for deciding whether to file a declaratory judgment action, drafting one that survives, and defeating one filed against your client. It walks through the controversy analysis under MedImmune, the independent basis for federal jurisdiction, the discretionary factors courts apply under Wilton and Brillhart, and the anticipatory-filing exception to the first-filed rule. Separate sections cover the declaratory defendant's playbook, mootness by covenant not to sue, standstill agreements, and the mechanics that get overlooked. Use it before the filing decision, not after. Every item is phrased so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202612 min read

Business and CorporateMergers and Acquisitions

Deal Structuring Toolkit: Allocation Schedules, Assignment Consents, and Liability Carve-Outs

Working templates for building an acquisition structure that holds up against successor liability claims. It includes a liability matrix, assumed and excluded liabilities definitions with drafting notes, an assignment and assumption agreement, a consent request letter, environmental lease and escrow provisions, ERISA Section 4204 contract language, WARN allocation provisions, a tax clearance and holdback mechanism, insurance covenants, Section 363 sale order findings, a solvency certificate, and a post-closing conduct memorandum for the operating teams. Each carries drafting notes explaining what the provision does and which exposures it does not reach. Adapt everything to the jurisdictions involved and the diligence record.

Casey Scott McKaySeptember 5, 202625 min read

Business and CorporateMergers and Acquisitions

Deal Structure and Successor Liability Checklist: A Practical Checklist

A working checklist for identifying successor liability exposure and building a structure that actually addresses it. It opens with the liability inventory to complete in the first two weeks, then works through the structure decision, the excluded liabilities schedule, and each workstream that structure does not solve: environmental, multiemployer pensions, employment and labor, tax clearance, and insurance. Separate sections cover consents and closing mechanics, distressed deals and Section 363 sale orders, post-closing conduct that can undo the schedule, and the seller's own wind-down obligations. Every item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202611 min read

Business and CorporateMergers and Acquisitions

Deal Governance Toolkit: Board Minutes, Fairness Opinions, and Disclosure Schedules

Working templates for the governance record of a company sale. It includes a special committee authorizing resolution, director and officer conflicts questionnaires, a financial advisor conflicts request, a controller's MFW-compliant opening proposal letter, a board minutes template with annotated do and do-not guidance, an outreach log, a proxy background section outline, a management interests table, and a pre-signing documentation audit. Each carries drafting notes explaining what a reviewing court looks for and where records most often fail. Adapt everything to the entity, the state of incorporation, and the transaction structure.

Casey Scott McKaySeptember 5, 202619 min read

TechnologyTechnology Transactions

Data Center Colocation and Cloud Infrastructure Agreements: Power, Space, Capacity, and the Service You Actually Bought

A colocation or cloud infrastructure agreement looks like a services contract and behaves like a lease, a utility supply arrangement, and an insurance policy at the same time. This article explains what a customer is actually buying — power measured in kilowatts rather than square feet, a service level whose only remedy is a credit, and a bundle of access and interconnection rights that determine whether the facility is usable — and what the provider is careful not to promise. It works through the characterization question that decides what happens in the provider's bankruptcy, the availability definitions that make uptime commitments meaningful or hollow, the interconnection and cross-connect terms that quietly control cost, and the cloud-specific issues of committed spend, egress, capacity reservation, and regional availability. Separate sections address data access and law enforcement demands, security and audit rights, and the migration and exit provisions that must be negotiated at signature because they cannot be negotiated later. Worked examples follow a retailer's colocation renewal, a scale-up's cloud commitment, and a provider outage.

Casey Scott McKaySeptember 5, 202629 min read

TechnologyTechnology Transactions

Data Center Agreement Review Checklist

This checklist reviews a colocation or cloud infrastructure agreement in the order the provisions matter rather than the order they appear. It opens with the capacity commitment expressed in usable continuous load, the redundancy configuration, and the metering and escalation terms that determine the recurring bill. Service level sections work from the exclusions backwards, covering maintenance caps, demarcation, root cause obligations, credit mechanics, and the chronic-failure termination right that gives the commitment teeth. Interconnection, access, and suspension follow. Cloud sections cover committed spend, price protection, egress, capacity reservations, and change-of-terms rights. Later sections address security and audit, legal process for customer data, liability and insurance, provider insolvency protections, regulated-customer requirements, and the exit provisions. It closes with a post-signature governance list.

Casey Scott McKaySeptember 5, 20268 min read