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 Regulation

Beneficial Ownership Reporting Checklist

Ownership reporting failures are almost never analytical; they are administrative, and they are caught by checklists rather than by research. This checklist covers threshold monitoring and schedule selection for large holders, the drafting review for a Schedule 13D with particular attention to the purpose and arrangements items, the group analysis, and then the full Section 16 program: officer determination, onboarding, attribution, exemption approvals, pre-clearance, and the filings. Separate sections cover what to do when a filing is late and how to respond to a short-swing demand. It is written to be worked through with dates and initials.

Casey Scott McKaySeptember 5, 20268 min read

CorporateSecurities Regulation

Beneficial Ownership Reporting and Section 16: Schedules 13D and 13G, Group Formation, and Short-Swing Profits

Two disclosure regimes govern who owns large stakes in public companies, and they are more different than their adjacency suggests. Sections 13(d) and 13(g) require anyone crossing five percent to say who they are and what they intend, on a timetable that depends on whether they are activist or passive. Section 16 requires officers, directors, and ten percent holders to report every transaction and to disgorge profits from any purchase and sale within six months, regardless of intent or knowledge. This article explains both, with attention to the questions that actually cause trouble: when informal coordination becomes a group, whether cash-settled derivatives create beneficial ownership, how the short-swing rule is calculated to maximize recovery, and which exemptions actually work. Worked examples follow an activist accumulating a position and an executive who inadvertently owes a profit back.

Casey Scott McKaySeptember 5, 202629 min read

LitigationArbitration

Award Enforcement Toolkit: Petitions, Vacatur Motions, and Judgment Collection

Working templates for the post-award phase of an arbitration. It includes a petition to confirm, a motion to vacate structured around the statutory grounds, an institutional correction and completion request, a post-award deadline tracker, a jurisdiction decision tree built for the world after Badgerow, a debtor examination outline, and a model arbitration clause revised to address every failure this toolkit exists to fix. Each template carries drafting notes explaining what the language does and where it commonly fails. Adapt everything to the matter and the governing rules.

Casey Scott McKaySeptember 5, 202615 min read

AntitrustPrice Fixing and Cartels

Auditing a Pricing Algorithm for Antitrust Risk: A Practical Guide

An algorithmic pricing audit is not a technical review; it is an inquiry into what data enters the model, what assurance the firm receives about competitors, and whether pricing decisions remain the firm's own. This guide sets out a twelve-step audit that a legal team can run with the pricing and data functions, beginning with scoping and privilege and moving through vendor diligence, data provenance mapping, model architecture classification, and contract review. It covers the interviews that matter more than the documentation, the document review that finds the sentence nobody should have written, and the analysis of adherence and deviation that will be central to any later dispute. Remediation sections address contract renegotiation, model reconfiguration, decision documentation, and training. It closes with reporting to the board, setting the re-audit cadence, and what to do if the audit finds something serious.

Casey Scott McKaySeptember 5, 202628 min read

FinanceCommercial Lending

Asset-Based Lending Diligence Checklist

Asset-based facilities close on collateral diligence, and the items that delay a closing are almost always third-party documents nobody sent early enough. This checklist runs the whole process. It opens with the availability model that should precede any term sheet, then covers collateral diligence on customers, contracts, inventory, locations, and liens, the field examination and appraisal, and the eligibility and reserve negotiation where availability is actually determined. Later sections cover perfection by collateral type, the third-party documents and how to move them, the intercreditor terms that matter, factoring and true sale structuring, and the post-closing administration that determines how the lender treats the borrower for the life of the facility.

Casey Scott McKaySeptember 5, 20269 min read

FinanceCommercial Lending

Asset-Based Lending and Receivables Finance: Borrowing Bases, Factoring, and Control of Collateral

Asset-based lending prices a company's assets rather than its cash flow, which makes it available to borrowers no cash flow lender will touch and makes its documentation entirely different. This article explains the borrowing base — the eligibility criteria, advance rates, and reserves that decide how much a borrower can actually draw — and the monitoring apparatus of field examinations, appraisals, and reporting that supports it. It then turns to receivables finance, where the central question is whether a transaction is a sale or a secured loan, a distinction that determines the seller's rights on default and the buyer's position in bankruptcy. It covers lockbox and dominion arrangements, account debtor defenses, and the bankruptcy provisions that make asset-based structures behave differently from cash flow ones. Worked examples follow a facility from underwriting through a borrowing base that shrinks.

Casey Scott McKaySeptember 5, 202629 min read

Business and CorporateMergers and Acquisitions

Asset Deals, Stock Deals, and Successor Liability: What Follows the Business and What Stays Behind

The oldest rule in acquisitions is that an asset buyer takes the assets and leaves the liabilities behind, and the rule has so many exceptions that relying on it without analysis is malpractice. This article explains the four traditional common law exceptions, the product line and continuity-of-enterprise doctrines some states have added, and the federal regimes that impose successor obligations regardless of structure: CERCLA, ERISA withdrawal liability, the WARN Act, labor law successorship, and employment discrimination. It covers what a Section 363 sale actually clears and what survives it, how fraudulent transfer law reaches an underpriced deal, and where bulk sales and tax clearance rules still bite. It closes with the structuring decisions that actually reduce exposure and the ones that only appear to.

Casey Scott McKaySeptember 5, 202629 min read

CommercialAntitrust

Assessing Robinson-Patman Exposure in a Pricing Program: A Practical Guide

Assessing Robinson-Patman exposure is an evidentiary exercise before it is a legal one, because the answer depends on facts most companies have never assembled. This guide runs the assessment: mapping net prices by customer, identifying which customers actually compete, and testing every differential against an available justification. It then covers remediation in the order that matters — promotional programs first because they approach strict liability, then functional discounts, then the price tiers themselves. It explains how to build a cost justification study that will hold, how to institute meeting competition documentation that actually works, and how to train a sales force whose emails are the usual source of damaging evidence. It closes with the privilege considerations that shape how the assessment is conducted.

Casey Scott McKaySeptember 5, 202629 min read

LitigationArbitration

Arbitration Award Challenge Checklist: A Practical Checklist

A working checklist for the days and weeks after an arbitration award issues. It covers the three reads of the award, the six deadlines to calendar on day one, a ground-by-ground vacatur assessment under Section 10, the jurisdictional analysis that Badgerow made mandatory, the confirmation filing, and the collection sequence that turns a judgment into money. Separate sections address Convention awards, partial awards, insolvent debtors, and the drafting fixes each matter produces. Every item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202610 min read

LitigationArbitration

Arbitrability and Motion to Compel Checklist: A Practical Checklist

A working checklist for moving to compel arbitration, opposing such a motion, and auditing an arbitration clause before either happens. It sequences the questions in the order courts answer them: which agreement governs, whether the FAA applies, whether an agreement was formed, whether arbitrability is delegated, and only then scope. Separate sections cover the formation-evidence package for online terms, the waiver timeline, the stay request, appellate posture, and an annual clause review. Each item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 20269 min read

CorporateMergers and Acquisitions

Appraisal Rights and Controller Going-Private Transactions: Fair Value, MFW, and the Price That Sticks

Appraisal is the statutory right of a dissenting stockholder to have a court decide what a share was worth, and it is the only remedy in corporate law that ignores what the parties agreed to. This article explains what fair value means after the Delaware Supreme Court's DFC-Dell-Aruba trilogy pushed the analysis toward market evidence, and when a discounted cash flow model still carries the day. It then turns to the transaction where appraisal matters most: the controller going-private deal, where the buyer sits on both sides and entire fairness is the default. It works through the six MFW conditions, the ab initio timing requirement that Flood and Olenik defined, and what a special committee has to actually do rather than merely be. Along the way it covers Rule 13e-3, short-form mergers, appraisal arbitrage, and the strategic choice between a petition and a fiduciary claim. The goal is a practical map of a doctrine that decides billions of dollars on the question of what "fair" means.

Casey Scott McKaySeptember 5, 202629 min read

CorporateMergers and Acquisitions

Appraisal and Going-Private Toolkit: Special Committee Charters, Fairness Opinions, and Valuation Records

This toolkit collects the operative documents in a controller going-private transaction and an appraisal case, in the form practitioners actually need them. It provides annotated language for the controller's conditioned proposal letter, a special committee charter, the non-waivable merger agreement conditions, and the proxy disclosure items that carry the most litigation weight. It then turns to the appraisal side with a demand letter, a statutory information request, a prepayment notice, and a valuation record index. Every provision is annotated with the reason it exists and the failure it prevents.

Casey Scott McKaySeptember 5, 202611 min read