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.

CommercialGovernment Contracts

Government Contracting Basics: The FAR, Bid Protests, and Compliance Obligations

Selling to the federal government is not selling with extra paperwork. It is a different body of contract law, with terms incorporated by operation of regulation whether or not anyone negotiated them, a unilateral right in the buyer to change and to terminate, mandatory disclosure obligations that run against the contractor's own interest, and a protest system that lets competitors challenge an award before performance begins. This article explains how federal procurement is structured, what the contract types mean for risk, how bid protests actually work at GAO and the Court of Federal Claims and when they are worth filing, the claims and disputes process under the Contract Disputes Act, and the compliance obligations that create the most exposure for new entrants. The recurring lesson is that deadlines here are jurisdictional and documentation is the whole case.

Casey Scott McKayNovember 15, 202525 min read

FinanceFinancial Services Regulation

Investment Adviser and Broker-Dealer Regulation: Registration, Fiduciary Duty, and Examinations

Two federal regimes govern people who give investment advice and people who effect securities transactions, and the line between them determines everything that follows. An investment adviser is a fiduciary registered with the SEC or a state, filing a public disclosure document and subject to rules on custody, compliance, marketing, and recordkeeping. A broker-dealer registers with the SEC, joins FINRA, maintains net capital, and owes retail customers the obligations of Regulation Best Interest rather than a general fiduciary duty. This article explains who falls into each category and how the exemptions work, covers the substantive obligations that generate the most enforcement, and walks through what an SEC examination actually involves. It closes with the recent enforcement patterns that should shape any compliance program.

Casey Scott McKayNovember 13, 202525 min read

Intellectual PropertyTrademark

The Washington Redskins Trademark Troubles: Disparagement, Matal v. Tam, and the Aftermath

For a quarter century the federal registrations for the Washington NFL team's former name were the most famous trademarks in America that the government tried to cancel. This article traces the full arc: the Harjo and Blackhorse petitions before the Trademark Trial and Appeal Board, the cancellations under the Lanham Act's Section 2(a) disparagement bar, and the Fourth Circuit litigation in Pro-Football, Inc. v. Blackhorse. It explains how a wholly unrelated case about an Asian-American dance-rock band, Matal v. Tam (582 U.S. 218 (2017)), struck down the disparagement clause on First Amendment grounds and rescued the registrations, and how Iancu v. Brunetti (588 U.S. 388 (2019)) finished the job by invalidating the immoral-or-scandalous bar. It then turns to the surprising sequel, Vidal v. Elster (602 U.S. 286 (2024)), where the Court drew the outer limit of those rulings. Finally it covers what actually changed the name in 2020 and 2022 (it was not the law) and the lasting lessons for anyone weighing an edgy, provocative, or offensive brand. Plain-English throughout, balanced, and built for lawyers and curious non-lawyers alike.

Casey Scott McKayNovember 11, 202544 min read

LitigationCivil Procedure

Res Judicata, Collateral Estoppel, and the Preclusive Effect of Judgments

Preclusion doctrine decides which fights are over, and it does so through two very different mechanisms that practitioners routinely blend together. Claim preclusion bars an entire second lawsuit on the same transaction, including theories that were never raised, while issue preclusion bars relitigation of a specific issue that was actually litigated and necessarily decided. This article separates them, works through each element in the order a court will consider it, and covers the areas where the rules are counterintuitive: nonparty preclusion after Taylor v. Sturgell, the abandonment of mutuality and the discretion courts retain over offensive use, what preclusive effect a federal court gives a state judgment and what a state court gives a federal one, and when an administrative agency or arbitrator can decide something that binds a court. It closes with the pleading and waiver rules that decide these questions in practice.

Casey Scott McKayNovember 11, 202525 min read

LitigationCommencement and Pleadings

Drafting a Complaint That Survives a Motion to Dismiss

A complaint is a screening document. Its only job at the outset is to survive a motion to dismiss, and the plausibility standard means that the facts a plaintiff pleads matter far more than the causes of action they name. This guide covers drafting from the jurisdictional allegations forward. It explains what Rule 8 requires after Twombly and Iqbal, how courts separate conclusory assertions from well-pleaded facts, and the practical technique of pleading each element with the specific facts that support it. It then covers the heightened particularity Rule 9(b) requires for fraud and the claims courts treat as sounding in fraud, jurisdiction and standing, and the structural choices that determine whether a complaint reads as coherent or as a list. Later sections address exhibits and the documents a court may consider on a motion to dismiss, defensive pleading against affirmative defenses, alternative claims, the prayer for relief, and Rule 11.

Casey Scott McKayNovember 9, 202526 min read

CorporateTax

Choice of Entity and the Tax Consequences That Follow: LLC, S Corporation, C Corporation, and Partnership

Entity choice is really two decisions that people collapse into one: what the business is under state law, and how it is taxed under federal law. Since the check-the-box regulations, those questions come apart almost completely, so an LLC may be taxed as a partnership, an S corporation, or a C corporation without changing anything about its governance. This article separates the two decisions and works through the tax consequences that actually drive the answer — self-employment tax and the reasonable compensation problem, basis and loss utilization, the qualified business income deduction, qualified small business stock, and what happens on exit, which is where most of the money is. It closes with the mechanics of getting from one regime to another when the original choice stops fitting, and with the state-level taxes that increasingly override the federal analysis.

Casey Scott McKayNovember 9, 202527 min read

LitigationTrial and Post-Trial

Jury Selection and Voir Dire: A Practical Guide for Civil Trials

Jury selection is the only phase of a civil trial in which a lawyer is not trying to persuade, and the most common mistake is forgetting that. Voir dire exists to identify the people who cannot be fair to your client and to develop a record supporting their removal, and every minute spent arguing the case instead is a minute not spent finding them. This guide covers how the venire is assembled and what challenges to its composition are available, the difference between a challenge for cause and a peremptory strike and how each is used, the Batson framework as it applies in civil cases, the mechanics of the struck jury and strike-and-replace methods, and how to design questions that actually surface bias. It closes with jury questionnaires, permissible juror research, and the post-verdict issues that trace back to selection.

Casey Scott McKayNovember 7, 202524 min read

Intellectual PropertyCopyright

Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist

A DMCA counter-notice is the system's built-in safety valve: a conforming counter-notification forces removed content back online unless the copyright owner sues within the statutory window. This checklist walks a user whose content was taken down through the honest self-assessment that should precede any counter-notice, the procedural and substantive review of the underlying takedown, the five statutory elements of Section 512(g)(3) including the binding consent to federal jurisdiction, and the 10-to-14-business-day restoration clock. It flags when a counter-notice is the right move and when it is a trap, the fair-use cautions, and the Section 512(f) exposure for a knowing false counter-notice. Get advice before filing on close calls.

Casey Scott McKayNovember 4, 20256 min read

LitigationMass Torts

MDL Case Management and Bellwether Checklist: A Practical Checklist

This checklist runs a multidistrict litigation from the JPML petition through settlement administration and remand, with separate tracks for leadership counsel, individual inventory counsel, and defense counsel. It covers the transfer stage, the case management orders that constitute the real procedural law of the proceeding, the intake vetting that determines whether an inventory survives, fact sheet and registry compliance, the general causation and bellwether stages, and the settlement participation process including the individual informed consent obligations that apply to every client. A final section covers lien resolution and the remand posture.

Casey Scott McKayNovember 4, 20258 min read

Employment LawDiscrimination

Responding to an EEOC Charge: A Practical Guide for Employers

A charge of discrimination is the beginning of a process that is more consequential than most employers appreciate, because the position statement written in the first month becomes the employer's story for the rest of the case. This guide covers the response from receipt through resolution. It explains the jurisdictional and timeliness questions that should be evaluated before anything is written, the immediate steps including the litigation hold and the anti-retaliation instruction that prevents the second claim, and the investigation that must precede the position statement. It then addresses the position statement itself in detail, including what to include, what to withhold, and the disclosure rules that mean the charging party will read it. Later sections cover requests for information, on-site visits and witness interviews, mediation and conciliation, the determinations the agency can issue, and what to do when the right to sue letter arrives.

Casey Scott McKayNovember 3, 202525 min read

CriminalRecord Relief

Expungement and Record Relief Toolkit: Petitions, Certificates, and Collateral Consequences

A working kit for clearing a record. Section A compares the remedies side by side with what each actually accomplishes. Section B holds worksheets: a record inventory, a per case eligibility analysis, and a collateral consequences inventory that identifies which barrier is actually costing you. Section C holds filings: a motion to waive or convert court costs, an expungement petition outline, a personal statement template, and a support letter template with the specificity that persuades. Section D holds the post order letters to seven recipients. Section E holds consumer law instruments: an FCRA dispute, an adverse action response, and a mugshot removal demand. Section F holds a licensing preliminary determination request and a pardon outline. Section G collects the primary authorities.

Casey Scott McKayNovember 3, 202514 min read

Intellectual PropertyTrademark Litigation

Petitioning to Cancel a Trademark Registration: A Practical Checklist

A federal trademark registration is powerful but not bulletproof—it can be cancelled when it should never have issued or should no longer stand. This checklist guides a challenger and its counsel through petitioning to cancel a registration before the Trademark Trial and Appeal Board: confirming the right venue, checking the registration's age and incontestability status, matching the available grounds to the timing, confirming entitlement to a statutory cause of action, pleading and filing through ESTTA, and prosecuting the proceeding. It maps the within-five-years grounds against the anytime grounds, flags the demanding post-In re Bose fraud standard, and notes the cheaper Trademark Modernization Act expungement and reexamination routes for pure nonuse. WHY notes and traps accompany each phase. Verify current TBMP guidance, 37 C.F.R. Part 2, and fees before filing.

Casey Scott McKayNovember 1, 20258 min read