Legal 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.
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.
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.
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.
Antitrust Investigation Response Checklist: A Practical Checklist
This checklist runs a criminal antitrust matter from the first signal through remediation, on the compressed timeline the leniency race imposes. It opens with recognizing how investigations start, the first forty-eight hours, and a litigation hold aimed at the sources cartel investigations actually care about—calendars, expense records, phone logs, and messaging platforms. It then covers the marker decision made on incomplete facts, the parallel global applications that must go out the same week, the internal investigation with separate counsel for individuals, and joint defense arrangements that constrain later cooperation. Later sections address the grand jury phase, plea negotiation and the volume of affected commerce, ACPERA cooperation with civil plaintiffs, collateral consequences including suspension and debarment, and the compliance program aimed at where cartels actually form.
Anti-Suit Injunctions and Parallel Proceedings: Racing to Judgment Across Borders
When the same dispute is litigated in two countries at once, the party that reaches judgment first frequently wins everywhere, and an anti-suit injunction is the weapon for stopping the other race. This article explains how US courts decide whether to issue one: the threshold requirements that both circuits share, and the deep split between the liberal approach, which weighs duplication and inefficiency, and the conservative approach, which requires a threat to the enjoining court's jurisdiction or to an important public policy. It covers the escalation into anti-anti-suit injunctions, the alternatives of a stay and forum non conveniens, and the practical decision of whether to race or to seek an injunction. Worked examples follow a contract dispute filed in two forums and a standard-essential patent case where the injunction battle decided the outcome.
Algorithmic Pricing Compliance Checklist
This checklist covers the compliance controls that keep an algorithmic pricing programme defensible. It begins with the inventory that finds every tool in use, including the departmental subscriptions legal has never seen, and the architecture classification that determines how much scrutiny each requires. Data provenance sections trace every competitor-derived field to its original human or public source and separate lawful market intelligence from inter-firm communication. Pooling safeguards are measured against the recognized conditions for lawful information exchange, followed by the contract terms to find, negotiate, or remove. Later sections cover model configuration, documented human review, document hygiene, training scenarios, and the vendor conduct that becomes the subscriber's problem. It closes with acquisition diligence, board reporting, and the escalation steps if something serious is found.
Algorithmic Pricing and Antitrust: Shared Software, Tacit Collusion, and the New Price-Fixing Cases
Software that recommends prices from a pool of competitor data has become standard in several industries, and it has produced a wave of litigation asking whether a common algorithm can be an agreement. This article separates the questions courts are actually deciding: whether a hub-and-spoke theory works when the spokes never talk to each other, when a per se rule applies rather than a rule of reason, and what the older information-exchange cases contribute. It traces the doctrine from Interstate Circuit and American Tobacco through Twombly and Matsushita, explains why conscious parallelism alone is lawful and what plus factors change that, and identifies the specific design features that convert a useful pricing tool into an antitrust problem. Worked examples follow a hotel operator evaluating a revenue management vendor, a distributor building an internal model, and a company responding to a civil investigative demand. It closes with the compliance architecture that keeps a pricing programme defensible.
Activism Preparedness Checklist: A Practical Checklist
This checklist covers activism preparedness and response, front-loaded toward the work done in ordinary years because that is what determines the outcome. It opens with the shareholder register and surveillance, the annual self-assessment run through activist eyes, the bylaw and rights plan infrastructure, the named response team, and the tabletop exercise that reveals what is missing. It then runs the response: the first seventy-two hours, the honest substantive assessment in privileged session, the nomination notice review with a caution against strained rejections, the vote model built holder by holder under universal proxy, and institutional and proxy adviser engagement. Closing sections address settlement terms and the test for settling, defensive measures and the scrutiny they attract, running a contest, communications with employees and customers, and living with an appointed director.
Acquisition Agreement Toolkit: Reps, Schedules, Escrows, Earnouts, and Claim Notices
Working templates for the risk allocation provisions of an acquisition agreement. It includes LOI indemnity language, a full indemnification article with drafting notes, definitions of Knowledge, Fraud, Losses, and Material Adverse Effect, a disclosure schedule format and general disclosure provision, escrow release mechanics, a special indemnity template, earnout covenants that are actually enforceable, a working capital exhibit with a sample calculation format, a claim notice, and a post-closing calendar. Each carries notes on what the language does, what the other side will say, and where deals go wrong. Adapt everything to the transaction, the governing law, and the diligence record.
Medicare: Enrollment, Coverage, Appeals, and What It Does Not Pay For
Medicare is four programs with different rules, three enrollment systems with different penalties, and an appeal structure with five levels, and almost every consequential mistake people make with it is a timing mistake. This article explains who is eligible and when, why missing an enrollment period produces a penalty that lasts for life, what each part covers and what none of them cover, why observation status can eliminate the skilled nursing benefit entirely, why the improvement standard is not the law, how the five level appeal process works including the expedited review that produces a decision in about two days, how Medigap guaranteed issue rights work and why the one time window matters more than the price, and the programs that reduce costs for people with limited income.
Medical Negligence Toolkit: Records, Experts, Pre-Suit Requirements, and Damages
A working kit for medical negligence practice. Section A holds the demand letters: an itemized records request, a separate electronic audit trail demand, and an evidence preservation letter for strips, specimens, and equipment. Section B holds a chronology template and a case type analysis map. Section C holds expert instruments: a qualification worksheet keyed to state statutes, a merit review engagement letter that asks breach and causation separately, and a nexus of opinions checklist. Section D holds pre suit filings including a certificate of merit, a notice of intent, and an FTCA administrative claim. Section E holds discovery requests and a response to a peer review privilege assertion. Section F holds damages and lien instruments. Section G collects the primary authorities.
Enrolling in and Appealing Medicare: A Practical Guide
This guide runs Medicare in the order a person actually encounters it, from the decision six months before turning sixty five through an appeal of a denied claim. It covers the enrollment decision tree including the employer coverage verification that determines whether delaying Part B is safe, the six month Medigap window that closes permanently, how to compare Medicare Advantage against original Medicare with a supplement using the asymmetry that should drive the choice, the annual review that takes an hour and saves the most money, what to do on hospital admission about observation status, the notice that carries a two day appeal, the five appeal levels and where representation begins to matter, and the cost assistance programs that are badly under enrolled.