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.

LitigationCross-Border Litigation

Section 1782 Discovery in Aid of Foreign Proceedings: Who Can Ask, What They Get, and What ZF Automotive Changed

Section 1782 lets a party to a foreign proceeding obtain American-style discovery from persons found in the United States, and for a decade it was the most powerful and most contested tool in cross-border litigation. This article sets out the three statutory requirements and the four discretionary factors that govern every application, then explains what ZF Automotive settled and what it left open: private commercial arbitration is out, governmental and intergovernmental adjudicative bodies are in, and the treatment of investor-state tribunals now turns on the consent instrument that created them. It works through the contested questions that remain — what "resides or is found" means for a foreign corporation, whether the statute reaches documents held abroad, and how courts assess foreign receptivity — together with the practical mechanics of an ex parte application and a motion to quash. Separate sections cover the Hague Evidence Convention, foreign blocking statutes, and the strategic use of 1782 by respondents. Worked examples follow a document application, a deposition of a US executive, and a successful challenge.

Casey Scott McKaySeptember 5, 202629 min read

LitigationCross-Border Litigation

Section 1782 Application Checklist

This checklist runs a section 1782 matter from the threshold question of whether a qualifying tribunal exists through production, opposition, and appeal. Applicant sections cover the ZF Automotive analysis, the reasonable contemplation record for a pre-suit application, target selection ranked from strongest to weakest, venue considerations, and the foreign counsel declaration that must establish use and receptivity. Scope discipline is set out in detail because courts deny broad applications rather than narrowing them. Respondent sections cover the response decision, the foreign-forum investigation that produces the strongest defences, intervention by the foreign adversary, and a motion to quash organized around the Intel factors. Later sections cover blocking statutes and data protection, cross-border privilege, protective orders, timelines, appeals, and the defensive application.

Casey Scott McKaySeptember 5, 20268 min read

Intellectual PropertyPatents

Section 101 Toolkit: Claim Drafting, Motions to Dismiss, and Expert Support

Working templates for patent eligibility practice on both sides and at the Patent Office. It includes a screening memorandum, a specification-admissions extraction worksheet, a representative-claim chart, a motion to dismiss outline with drafting notes, an opposition outline, eligibility allegations for a complaint, a conventionality declaration outline, a response to a Section 101 rejection, a specification drafting guide with a functional-to-mechanism conversion table, an allowance memorandum, a portfolio assessment worksheet, and a pre-suit letter. Each carries notes on what courts actually credit and where each side most often fails. A quick-reference table sets out who decides each question and under what standard. Adapt every template to the patent, the record, and the district's practice.

Casey Scott McKaySeptember 5, 202618 min read

CorporateMergers and Acquisitions

Running or Responding to a Tender Offer: A Practical Guide

Running a tender offer is a logistics exercise wrapped around a legal one, and the logistics are what fail. This guide walks the bidder's side from pre-commencement preparation through commencement, extensions, expiration, acceptance, and the back-end merger, identifying the third parties whose lead times control the timetable. It then walks the target's side: the first forty-eight hours, the ten-business-day clock for the Schedule 14D-9, the board's decision architecture under enhanced scrutiny, and the defensive tools that remain available. It covers the negotiated two-step transaction, now the most common use of the structure, and the mechanics that make a five-week close possible. Worked timetables for both hostile and friendly offers are included.

Casey Scott McKaySeptember 5, 202628 min read

LitigationArbitration

Running an International Arbitration: A Practical Guide

A step-by-step operational guide to conducting an international commercial arbitration from the request through enforcement. It covers the pre-filing assessment, constituting the tribunal and vetting arbitrators, the first procedural conference and the orders that shape everything after it, the memorial system, document production under the IBA Rules, witness and expert evidence, hearing logistics, post-hearing submissions, and the award. It includes budgets, timelines, staffing, worked examples with named parties, and the mistakes American practitioners make most often. Written to be used by counsel on either side and by in-house lawyers supervising outside teams.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyPatents

Running an ANDA Litigation: A Practical Guide

A step-by-step guide to prosecuting and defending a Hatch-Waxman case, written for counsel on both sides and for the regulatory and business teams that make the underlying decisions. It runs from the generic's pre-filing analysis and notice letter through the brand's 45-day sprint, the confidential access process, scheduling against the 30-month stay, discovery centered on the ANDA, claim construction, the bench trial, and the settlement and launch decisions. Separate parts cover the skinny-label carve-out and induced infringement, the PTAB track and its estoppel cost, at-risk launch analysis, and the antitrust review every settlement receives. It includes a worked case with named parties, budgets, a realistic calendar, and the mistakes that recur.

Casey Scott McKaySeptember 5, 202628 min read

Business and CorporateMergers and Acquisitions

Running a Sale Process That Survives Review: A Practical Guide for Boards

A step-by-step operational guide for a board selling the company, written for directors and the lawyers advising them. It runs from the first unsolicited approach through committee formation, advisor selection, the market check, negotiation, deal protections, the proxy, and the vote, explaining at each step what a reviewing court will look for. Separate parts cover controller transactions and the MFW sequence, management conflicts, appraisal exposure, and the documentation that carries the record. It includes a worked sale process with named parties, a realistic calendar, budgets, and the mistakes that convert a clean deal into years of litigation. The organizing principle is that the standard of review is chosen by process decisions made in the first two weeks.

Casey Scott McKaySeptember 5, 202628 min read

Business and CorporateSecurities

Running a Public Company Disclosure Program: A Practical Guide

A step-by-step operational guide to building and running the disclosure function of a public company, written for general counsel, securities counsel, and the finance leaders who share the work. It covers the disclosure committee and its charter, the sub-certification process that supports the officer certifications, the Form 8-K trigger protocol and escalation paths, documented materiality assessments, the earnings and guidance process, Regulation FD controls, insider trading policy administration including 10b5-1 plans and Section 16, and the annual calendar. Separate parts address what to do when something goes wrong, restatements and internal investigations, and the first ninety days for a newly public company. It includes worked scenarios, budgets, and staffing.

Casey Scott McKaySeptember 5, 202628 min read

CommercialAntitrust

Robinson-Patman Compliance Checklist

Robinson-Patman compliance is an evidentiary discipline, and this checklist collects the steps that produce the evidence. It opens with the screen that determines whether meaningful exposure exists at all, then covers the net price mapping and competing-customer analysis that locate it. Separate sections address each justification — cost, meeting competition, functional discount, and availability — with the requirements that make each hold. It then runs the promotional allowance program, which approaches strict liability and carries an affirmative notification duty, the brokerage provision, and buyer-side exposure. It closes with the sales training points, the ongoing exception reporting, and the red flags that should stop a pricing decision.

Casey Scott McKaySeptember 5, 20268 min read

CorporateSecurities Regulation

Restricted Securities Resale Checklist

A restricted stock sale clears or stalls on a defined set of facts, and this checklist collects them. It runs the document assembly that must precede any analysis, the affiliate determination that drives every other condition, the holding period and tacking chain, and the disqualifier checks that are most often skipped. Separate sections cover the affiliate's volume, manner-of-sale, and filing obligations, the representation letters and opinion, and the transfer agent process. It also covers the alternatives when Rule 144 will not work, the contractual restrictions that usually bind longer than the securities laws, and the issuance records practice that prevents the whole problem.

Casey Scott McKaySeptember 5, 20268 min read

CorporateGovernance

Responding to an Activist Campaign: A Practical Guide

This guide runs an activist campaign from the surveillance signal through the settlement or the vote, in the order events occur and on the schedule the activist sets. It starts with preparedness — the register, the annual self-assessment through activist eyes, the bylaw review, and the response team named before anyone needs it — because that work determines the outcome. It then covers the first seventy-two hours, the honest substantive assessment the board must make in private, the nomination notice and whether to challenge it, and the vote model built holder by holder. Later steps address institutional and proxy adviser engagement, settlement terms and the test for whether to settle, defensive measures and the scrutiny they attract, running a contest to a vote, and living with an appointed director afterward. A running example follows one company through six months.

Casey Scott McKaySeptember 5, 202628 min read

TechnologyTechnology Transactions

Responding to a Software License Audit: A Practical Guide

A software audit is a project with a deadline, an adversary, and a number attached, and the outcome is largely determined in the first three weeks. This guide sets out the response sequence: reading the audit clause before answering, establishing privilege and a single channel, negotiating an NDA and a written scope document, and completing an internal assessment before the auditor's. It explains how to reconstruct entitlements when the records are scattered, how to run deployment discovery that answers the metric rather than producing noise, and how to build the reconciliation that becomes the customer's case. Later steps cover reviewing and rebutting the draft findings, the arguments that work on virtualization and indirect access, and the settlement negotiation — including the contract terms to fix while leverage is highest. It closes with the governance that prevents the next audit from being expensive.

Casey Scott McKaySeptember 5, 202629 min read