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.

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HealthcareRegulatory Compliance

Healthcare Regulatory Compliance Toolkit

Healthcare is regulated by more overlapping regimes than any other industry, and the organizations that fail are rarely the ones that intended to. They are the ones whose arrangements expired without anyone noticing, whose risk analysis covered the electronic health record and nothing else, and whose response to a hotline report took four months. This toolkit maps the whole compliance surface in the order a provider actually encounters it: entity structure and licensure, the fraud and abuse framework governing every financial relationship with a referral source, privacy and security, billing and documentation, the compliance program itself, and the response sequence when something is found. Each stage points to the article, checklist, or guide that covers it in depth.

Casey Scott McKayNovember 30, 202514 min read
Intellectual PropertyTrade Secret

Generative AI Trade Secret Protection Checklist: A Practical Checklist

This checklist turns the trade secret risks of generative AI into specific, ordered tasks for in-house counsel, security leaders, and outside advisers. It runs through twelve phases: governance and scope, discovery of current AI use, identification and classification of secrets, vendor and tool approval, technical controls, the written policy, contracts, training and certification, protection of AI assets such as prompts and model weights, prompt-leakage incident response, onboarding and departures, and audit and litigation readiness. Each item cites the governing authority, chiefly the Defend Trade Secrets Act and the reasonable-measures case law, and adds a practical note where the task is commonly done wrong. Red-flag boxes mark the facts that most often undermine a later trade secret claim. A deadlines table, a short worked example, and a list of common failure points close the checklist.

Casey Scott McKayNovember 30, 202521 min read
LitigationCivil Procedure

Federal Jurisdiction Toolkit: Notices of Removal, Remand Motions, and Jurisdictional Allegations

This toolkit gives litigators working papers for federal jurisdiction and removal. It includes a citizenship worksheet, a bank of jurisdictional allegations by entity type, an LLC membership request letter and interrogatories, a Rule 7.1 statement, and a covenant for keeping ownership data available. Removal papers include a clock worksheet, a notice of removal with alternate paragraphs, a consent form, the state court notice, and supporting declarations. Remand papers include a motion outline, a § 1447(c) fee request, and an opposition outline, along with language for a Royal Canin amendment and an early-review request after an improper-joinder ruling. Papers for a late-discovered defect close the set. Each form names its purpose, owner, and timing, and its notes tie the language to current authority.

Casey Scott McKayNovember 22, 202537 min read
Intellectual PropertyTrademark

Tea Rose-Rectanus and the Geographic Scope of Common-Law Trademark Rights: A Practical Guide

The Tea Rose-Rectanus doctrine is the rule that explains how two unrelated businesses can lawfully own the same trademark in different parts of the country. Born from two Supreme Court decisions in the 1910s, it holds that a common-law trademark is not a nationwide right but a local one, anchored to the markets where the owner actually trades and builds a reputation—so a later adopter who innocently uses the same mark in a separate, remote market can acquire its own rights there. This deep-dive traces the doctrine's origins, dissects its two elements (good faith and remoteness), examines the modern circuit split over whether mere knowledge of a senior user destroys good faith (Stone Creek v. Omnia), and maps how federal registration overrides the doctrine going forward through constructive notice, constructive use under § 1057(c), and the frozen limited-area defense under § 1115(b)(5). It closes with a worked hypothetical and practical takeaways for both registrants and unregistered owners.

Casey Scott McKayNovember 21, 202535 min read
CriminalSentencing

Probation, Parole, and Supervised Release: Conditions, Violations, and Revocation

More Americans are under community supervision than are incarcerated, and supervision is now a leading pathway back into custody, mostly for conduct that is not a crime. This article explains the difference between probation, parole, and federal supervised release, where conditions come from and which ones are challengeable, why technical violations drive most revocations, what process is due at a revocation hearing after Morrissey and Gagnon, why Bearden v. Georgia forbids revoking for nonpayment without an inquiry into ability to pay, how the reduced Fourth Amendment protection of supervisees actually operates, what United States v. Haymond held about mandatory revocation penalties, and how modification, early termination, and interstate transfer work.

Casey Scott McKayNovember 17, 202528 min read
Intellectual PropertyPatent

Doctrine of Equivalents Checklist: A Practical Checklist

This checklist converts a doctrine of equivalents dispute into phased, check-off tasks for patent owners and accused infringers. It begins with collecting the file history and sorting each limitation, then proceeds through estoppel and rebuttal, disclosure-dedication, vitiation, and ensnarement. Later phases cover pleading, contentions, discovery, expert reports, motions, trial, post-trial, and appeal, with a closing phase for patent prosecutors who can still fix the record. Each task names its governing authority, and red flags mark the points where these cases are most often lost. It is meant to be printed and used alongside the companion guide and toolkit.

Casey Scott McKayNovember 17, 202517 min read
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, 202524 min read
Intellectual PropertyPrivacy

Biometric Privacy Toolkit: Retention Policies, Consent Forms, and Vendor Terms

This toolkit provides working templates for a biometric privacy program and for the first weeks of a biometric privacy claim, each with its purpose, owner, timing, bracketed placeholders, and drafting commentary tied to the governing authority. The compliance templates are a biometric data inventory worksheet, a public retention and destruction policy, an employee notice and written release, a consumer notice and consent for app and in-store flows, a vendor biometric addendum, and a destruction certificate. The litigation templates are a biometric-specific litigation hold notice that addresses the conflict between preservation and BIPA's destruction duty, an insurance tender letter, and a litigation response memo outline that tracks removal, arbitration, exemptions, damages after the 2024 amendment and the Seventh Circuit's 2026 decision in Clay v. Union Pacific, and settlement. A running example follows a regional optical retailer with fingerprint time clocks and a virtual try-on feature through each template. The templates assume Illinois law as the baseline and flag additions for Texas, Colorado, California, and New York City.

Casey Scott McKayNovember 15, 202533 min read
Intellectual PropertyRight of Publicity

The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona

The right of publicity gives a person control over the commercial use of their name, likeness, and voice, and the First Amendment guarantees everyone else the freedom to write, film, draw, and joke about real people; this article explains where the two meet and who wins. It starts with Zacchini, the only Supreme Court decision on the subject, and then works through the four competing tests the lower courts use: the transformative use test of Comedy III and the video game cases, the Rogers test and what Jack Daniel's did to it, Missouri's predominant use test, and the ad hoc balancing of Cardtoons, ETW, and the fantasy sports decisions. It then covers the statutory newsworthiness and public affairs exemptions in California, New York, and other states, the docudrama cases from Sarver to de Havilland, the commercial speech line drawn in Jordan v. Jewel, copyright preemption, false endorsement as a parallel claim, Section 230, anti-SLAPP motions, and damages. Three worked examples (a streaming docudrama about a living CEO, a mobile game with lookalike athletes, and a brand's social media post congratulating a celebrity) show how the analysis runs in practice for both the creator and the person depicted. It closes with strategy for each side, common mistakes, an FAQ, and practical takeaways.

Casey Scott McKayNovember 13, 202568 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, 202543 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, 202524 min read