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.

CommercialAntitrust

The Robinson-Patman Act: Price Discrimination, Promotional Allowances, and a Statute That Came Back

The Robinson-Patman Act prohibits charging different prices to competing buyers of the same goods, and for decades it was treated as a statute nobody enforced. That assumption has become unsafe. This article explains what the Act actually requires: two contemporaneous sales, commodities of like grade and quality, a price difference, and a reasonable possibility of competitive injury — plus the defenses that resolve most real cases. It works through the Morton Salt inference and what Volvo did to it, the cost justification defense that almost nobody successfully invokes, the meeting competition defense that most sellers actually rely on, and the functional discount analysis from Texaco v. Hasbrouck. It then covers promotional allowances and services, where the proportionally equal terms requirement operates as strict liability, and buyer-side exposure. It closes with a compliance program that works.

Casey Scott McKaySeptember 5, 202629 min read

TechnologyPlatform Regulation

The Digital Services Act and Digital Markets Act: What US Companies Actually Have to Do

Two European regulations now govern how American platforms operate, and the thresholds that trigger them are lower than most companies assume. This article explains what the Digital Services Act actually requires — the notice and action mechanism, statements of reasons, internal complaint handling, out-of-court dispute settlement, trader traceability, advertising transparency, and the escalating tiers that culminate in systemic risk assessment and independent audit — and who each obligation applies to. It then covers the Digital Markets Act, which is not a platform-conduct rule at all but a set of prohibitions and obligations aimed at a designated handful of gatekeepers, and explains why a non-gatekeeper still has to care. Along the way it maps the collisions with United States law, including Section 230 and the constitutional limits the Supreme Court described in Moody v. NetChoice. It closes with what a compliance program actually contains and what it costs.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyCopyright

Termination Rights Toolkit: Notices, Recordation, and Successor Agreements

This toolkit collects the working documents a copyright termination actually requires, on both sides of the transaction. It provides a window computation worksheet, a family tree and majority interest worksheet, annotated notice language for Sections 203, 304(c), and 304(d), a service and recordation packet, and a takers' agreement outline. It also supplies the grantee's tools: a catalog exposure schedule, a derivative works register, a response letter that preserves defenses without conceding anything, and a regrant term sheet for the exclusive negotiation window. Each item is annotated with the drafting decision behind it and the failure it is designed to prevent. Use the worksheets before the notice and the registers before the negotiation.

Casey Scott McKaySeptember 5, 202615 min read

CorporateMergers and Acquisitions

Tender Offers and the Williams Act: Schedule TO, the 14D-9, and the Rules That Govern a Bid

A tender offer is a bid made directly to stockholders over the board's head, and the Williams Act exists to make sure they have time and information before they decide. This article explains what legally counts as a tender offer, what the bidder must file and when, what the target must say and by when, and the substantive rules — all holders, best price, withdrawal, proration — that constrain how an offer is run. It then covers the defensive side: the poison pill, Unocal review of board responses, and why a pill that once ended offers now mostly buys time. It closes with the two-step structure that has made tender offers fast again, and with the insider trading rule that catches people who trade on knowledge of a coming bid. Worked examples follow a hostile bid from the first accumulation through the back-end merger.

Casey Scott McKaySeptember 5, 202629 min read

CorporateMergers and Acquisitions

Tender Offer Toolkit: Offer Documents, Recommendation Statements, and Conditions

This toolkit assembles the operative documents of a tender offer in drafting-ready form. For the bidder it provides a summary term sheet skeleton, a full conditions article with annotations on each condition's failure mode, extension and results press releases, and the merger agreement provisions that make a Section 251(h) two-step work. For the target it provides a holding statement, the board resolutions supporting a recommendation and a rights plan decision, the Schedule 14D-9 items most often omitted, and a compensation committee resolution securing the best price safe harbor. A Rule 14e-3 information barrier memorandum and a document production timetable complete the set.

Casey Scott McKaySeptember 5, 202612 min read

CorporateMergers and Acquisitions

Tender Offer Compliance Checklist

Tender offers fail on procedure more often than on strategy, and the procedures are unforgiving because the deadlines are measured in business days and cannot be cured. This checklist covers both sides. For the bidder it runs pre-commencement preparation, the Schedule TO and offer document contents, the substantive rules governing how an offer is conducted, extension and amendment mechanics, and closing. For the target it runs the first forty-eight hours, the ten-business-day clock, the Schedule 14D-9 disclosure items most often omitted, and the board process that supports a defensive response. A deadline table completes it.

Casey Scott McKaySeptember 5, 20269 min read

CorporateSecurities

Taking a Company Public: A Practical Guide

This guide runs an initial public offering in the order the work actually happens, which means it starts eighteen months before the filing. It covers the readiness assessment that determines the timetable, the financial reporting and capitalization work that is the usual cause of delay, and the governance and contract housekeeping that is far cheaper before underwriter diligence than during it. It then walks the transaction itself: selecting underwriters and counsel, the organizational meeting, drafting the registration statement, building the due diligence record that supports the Section 11 defense, the confidential submission and comment process, and the communications discipline that must hold from the first meeting through the lockup. Later steps cover the road show, pricing as a board decision, closing, and the public company obligations that begin immediately. A running example follows one company through twenty-two months.

Casey Scott McKaySeptember 5, 202629 min read

CorporateFinance

Syndicated Loan Documentation Checklist: A Practical Checklist

This checklist works a syndicated credit facility from commitment letter through closing, administration, and workout. It front-loads the provisions that decide outcomes years later: the EBITDA definition and its add-back caps, the sacred rights list and whether lien subordination sits inside it, the unrestricted subsidiary machinery, and incremental capacity. It then runs the collateral and perfection steps, the full conditions precedent list, and the post-closing letter that so often goes untracked. The administration sections cover compliance certificate review, assignment and register mechanics, and the information wall, and the last sections cover amendments, lender group organization, and intercreditor terms. Items that decide restructuring outcomes are flagged.

Casey Scott McKaySeptember 5, 20269 min read

CorporateFinance

Syndicated Credit Facilities and Intercreditor Arrangements: Agents, Lenders, and Priority

A syndicated credit facility is a single contract among a borrower and a group of lenders who do not trust each other, administered by an agent who is paid to be nobody's fiduciary. This article explains the architecture that results: the agent's carefully limited role, the required-lender voting structure and the sacred rights that sit outside it, the assignment and participation mechanics that determine who ends up holding the paper, and the reason courts have held that syndicated loans are not securities. It then turns to priority — intercreditor agreements, subordination enforceable in bankruptcy, credit bidding, and the liability management transactions that have made covenant drafting an adversarial exercise between lenders rather than between borrower and lender. It closes with what to negotiate and where the leverage actually is.

Casey Scott McKaySeptember 5, 202628 min read

CorporateSecurities and Disclosure

Sustainability Reporting Toolkit: Governance, Data Controls, and Assurance

This toolkit provides the working documents of a sustainability disclosure program: an obligation map template, a board committee charter extract, a data ownership and control matrix, a methodology document outline, and a substantiation file index. It supplies drafting language for target disclosure that discloses its own gap, offset disclosure with full particulars, and Scope 2 dual reporting, along with an environmental marketing claim review form and a supplier data request template. It closes with an assurance readiness worksheet, a restatement and change management policy, a bridge schedule format for reconciling reports across regimes, and an annual calendar. Adapt everything to the company's actual facts.

Casey Scott McKaySeptember 5, 202617 min read

ArbitrationInternational Arbitration

Structuring Arbitration for Multiparty Deals: A Practical Guide

Multiparty arbitration works when the consent was engineered at drafting and fails when it was not, so this guide begins with the transaction rather than the dispute. It sets out how to map the parties and contracts that will matter when something goes wrong, how to design a compatible clause suite across every agreement in a deal, and the specific provisions that make consolidation, joinder, and flow-down work. Sections on the law of the arbitration agreement, delegation, and multiparty appointment address the choices most often left blank. The second half covers running a dispute: assessing whether to seek or resist consolidation, the non-signatory analysis, preserving jurisdictional objections for enforcement, and managing a proceeding with four or more parties. Worked examples follow a project finance suite, a joint venture, and a post-closing dispute.

Casey Scott McKaySeptember 5, 202628 min read

CommercialEquipment Finance

Structuring and Papering an Equipment Lease: A Practical Guide

An equipment lease is documented as a master agreement with schedules, and the schedules are where the lease actually lives. This guide runs the structuring and documentation process from both sides: choosing a structure that achieves the characterization the parties need, sizing the residual, and drafting the schedule terms that determine whether the transaction is a lease or a loan. It covers the finance lease designation and the acceptance mechanics that make hell or high water operative, the insurance and casualty provisions, the stipulated loss schedule, and the perfection steps including the precautionary filing every lessor makes. It then turns to the lessee's negotiation, where the value is concentrated in the acceptance conditions and the end-of-term provisions rather than in the rate.

Casey Scott McKaySeptember 5, 202629 min read