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.

TechnologyData and Privacy

Responding to a Cross-Border Data Demand: A Practical Guide

This guide is the operating manual for a company that receives government demands for customer data, written in the order the work happens. It starts with intake and the validation pass that catches most defective demands, then routes by demand type through a decision tree covering United States criminal process, foreign government demands, civil subpoenas, section 1782 applications, emergency requests, and national security process. Later steps cover scope negotiation, which resolves more demands than litigation does, handling nondisclosure orders and the customer notification they collide with, preservation tracking, and the production itself. Final steps address when and how to challenge a demand, transparency reporting, and building the function so it survives volume. A running example follows a provider standing up the program after outgrowing an inbox.

Casey Scott McKaySeptember 5, 202628 min read

CorporateAntitrust

Responding to a Cartel Investigation: A Practical Guide

This guide runs a criminal antitrust matter from the first signal through the follow-on civil litigation, in the order events occur and under the time pressure they actually create. It begins with the four ways an investigation starts and the first forty-eight hours that determine whether evidence survives and whether the company is first in line. It covers the leniency 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 the joint defense agreements that constrain later cooperation. Later steps address plea negotiation and the volume of affected commerce that drives everything, ACPERA cooperation with the plaintiffs suing you, suspension and debarment for contractors, and the remediation that follows. A running example follows one company through a four-year matter.

Casey Scott McKaySeptember 5, 202628 min read

CorporateSecurities Regulation

Reselling Restricted Securities: Rule 144, Regulation S, and the Exemptions That Move Stock

Every private placement creates a problem that must be solved later: the securities cannot be freely resold, and the buyer eventually wants out. This article explains the resale framework, beginning with the statutory question of who is an underwriter and why that single definition drives everything. It works through Rule 144's safe harbor in detail — the holding periods and when they tack, the current public information condition, the volume and manner-of-sale limits that apply only to affiliates, and the shell company trap that suspends the rule entirely. It then covers the alternatives: the Section 4(a)(1½) private resale, Regulation S offshore sales, and registered resales on a shelf. It closes with legend removal, the transfer agent's role, and the opinion practice that actually moves the shares. Worked examples follow an affiliate, a fund, and a founder through their respective exits.

Casey Scott McKaySeptember 5, 202628 min read

CorporateSecurities Regulation

Resale Toolkit: Rule 144 Analyses, Seller Representation Letters, and Legend Removal Requests

This toolkit collects the documents that move restricted stock, each annotated with the point at which it usually fails. It provides a Rule 144 analysis worksheet that forces every fact into the open, an affiliate determination memorandum, and a volume computation worksheet for affiliates. It then supplies the package itself: a seller's representation letter, a broker's representation letter, a legend removal request, a counsel opinion form, and a transfer agent instruction. For situations Rule 144 cannot handle it provides private resale representations and a registration rights demand notice. An issuance ledger template closes the set, because the whole problem is preventable at issuance.

Casey Scott McKaySeptember 5, 202613 min read

Business and CorporateMergers and Acquisitions

Representations, Warranties, and Indemnification in Acquisition Agreements: Where the Money Actually Moves

The purchase price in an acquisition agreement is a headline number, and the indemnity package is what determines how much of it the seller keeps. This article explains how representations, disclosure schedules, survival periods, baskets, caps, escrows, and insurance fit together as a single risk-allocation system, and what each term is actually pricing. It covers the materiality scrape, sandbagging, the fraud carve-out and the exclusive remedy problem, the material adverse effect standard that Delaware courts have applied so demandingly, and how representation and warranty insurance changed the negotiation. It closes with a term-by-term account of what a well-negotiated package looks like from each side of the table and where deals most often go wrong after closing.

Casey Scott McKaySeptember 5, 202629 min read

LitigationClass Actions

Removing or Remanding a Class Action Under CAFA: A Practical Guide

This guide runs a CAFA removal and the remand fight that follows, in the order they happen and from both sides. It starts with the thirty-day calendar and the intake analysis that determines whether the case is removable, then drafting a notice that pleads plausibly rather than proving prematurely, and the mechanics that cause avoidable remands. It covers the amount in controversy declaration when the allegation is contested, jurisdictional discovery, and briefing the mandatory and discretionary exceptions with attention to who bears the burden. Later steps address the discretionary ten-day appeal, mass actions and their peculiar limits, the second removal window, and what changes once the case stays. Separate steps give the plaintiff's playbook and the alternative removal statutes worth checking. A running example follows one defendant and one plaintiff through the same case.

Casey Scott McKaySeptember 5, 202628 min read

FinanceCommercial Lending

Receivables Finance Toolkit: Borrowing Base Certificates, Factoring Agreements, and Control Documents

This toolkit provides the operative documents of an asset-based or receivables facility in drafting-ready form, annotated with the provision each one turns on. It includes a borrowing base certificate, a full set of eligibility definitions with the borrower-side negotiating points marked, and a reserve provision with the four protections worth insisting on. It supplies the third-party documents that drive every closing timetable — a control agreement request, a landlord waiver, and a bailee letter — with guidance on moving each. For receivables purchase structures it provides true sale provisions, a notification letter, and validity guaranty language. An intercreditor access rights clause and a borrowing base procedure memorandum for the borrower's finance team complete the set.

Casey Scott McKaySeptember 5, 202617 min read

LitigationGovernment Enforcement

Qui Tam Toolkit: Complaints, Disclosure Statements, Intervention, and Settlement

This toolkit supplies the working documents of a False Claims Act matter, ordered by when they are used. It opens with a signal-recognition worksheet and a first-thirty-days protocol, a litigation hold that reaches the systems where evidence actually lives, and a civil investigative demand response plan. It provides an internal investigation scope memorandum with an Upjohn warning script, a claim process map, a scienter file index built around what Schutte made decisive, and a materiality record request list aimed at the government's own conduct. Later tools cover jurisdictional bar research, a government presentation outline, a motion to dismiss framework, a relator disclosure statement outline, a settlement term sheet covering the collateral terms that often matter more than the money, a retaliation response protocol, and a compliance interpretation memorandum template. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202619 min read

CorporateMergers and Acquisitions

Pursuing or Defending an Appraisal Claim: A Practical Guide

An appraisal case has two entirely separate phases, and lawyers lose them for entirely separate reasons. The first is perfection, a mechanical sequence of demands and deadlines administered by brokerage back offices, where a single error is unfixable. The second is a valuation trial in which two experts build competing models and a judge decides which one describes reality. This guide walks both phases in order, from the decision whether to dissent through the demand mechanics, the petition, discovery aimed at the buyer's synergy files, expert selection, and the trial itself. It covers the respondent's side with equal attention, including the prepayment mechanism that caps interest exposure and the de minimis defenses that end cases early. It closes with the settlement dynamics that resolve most petitions before a judge ever sees a model.

Casey Scott McKaySeptember 5, 202629 min read

Business and CorporateMergers and Acquisitions

Purchase Agreement Review Checklist: A Practical Checklist

A working checklist for reviewing an acquisition agreement from either side of the table. It runs through the deal structure and purchase price mechanics, the representation set and its qualifiers, the disclosure schedules and their update rights, covenants and closing conditions, the six indemnity terms, insurance interaction, special indemnities, and the earnout. Separate sections cover asset deals, distressed sales, the claim procedure, and the post-closing calendar that prevents most lost claims. It is written so a reviewer can work top to bottom and finish with a list of open points ranked by dollars at stake. Every item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202612 min read

Intellectual PropertyEntertainment and Media

Publishing, Merchandising, and Character Licensing: Advances, Royalties, Approvals, and the Long Tail

Publishing and merchandising agreements are grants of copyright dressed as commercial contracts, and the money turns on how the grant is drafted rather than on the royalty rate. This article explains the grant of rights and the recurring failure of technology-neutral drafting, illustrated by the electronic rights cases that decided who owned formats nobody contemplated. It covers advances, the royalty base, the reserve against returns, and the audit rights that make royalty reporting meaningful. It then turns to character licensing, where the character itself may be protectable, and to merchandising, where approval rights and quality control are the licensor's whole protection. It closes with the statutory termination right that lets an author reclaim a grant decades later, which no contract can waive.

Casey Scott McKaySeptember 5, 202629 min read

Intellectual PropertyEntertainment and Media

Publishing and Merchandising Agreement Checklist

Publishing and merchandising agreements are long, and the provisions that determine the outcome are a short list. This checklist runs the ownership diligence that must precede any grant, then the grant and reservation where most of the value sits. It covers the royalty base and its deductions, the reserve against returns, acceptance and delivery, reversion, and the audit right that makes reporting meaningful. Separate sections cover the merchandising structure — minimum guarantee against minimum performance, the approval architecture, and the quality control programme that also preserves the trademark — and the termination and sell-off mechanics. It closes with programme administration and the calendar entries that must be made at signature.

Casey Scott McKaySeptember 5, 20267 min read