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.

HealthcareRegulatory Compliance

Healthcare Fraud and Abuse: The Anti-Kickback Statute, the Stark Law, and the False Claims Act

Three federal statutes govern nearly every financial arrangement in American healthcare, and they operate on assumptions that are alien to the rest of commercial law. The Anti-Kickback Statute makes it a felony to pay for a referral, with no requirement that the payment be unreasonable or that anyone be harmed. The Stark Law is a strict liability prohibition that forbids a physician from referring designated health services to an entity with which the physician has a financial relationship, unless an exception fits exactly. The False Claims Act converts violations of either into treble damages plus per-claim penalties, enforced largely by private whistleblowers who share in the recovery. This article explains how the three statutes interact, what the safe harbors and exceptions actually require, how the Supreme Court's decisions in Escobar and Schutte reshaped materiality and scienter, and what a healthcare organization should do when it discovers a problem.

Casey Scott McKayJune 4, 202526 min read

CorporateRisk Management

Preparing a Business Continuity and Crisis Management Plan

Most business continuity plans are written to satisfy a customer questionnaire and are never tested, which means they fail in exactly the circumstances they were written for. A plan that works is built from a real dependency map, states who decides what without waiting for a meeting, and has been exercised by the people who will have to use it. This guide covers the build in sequence: the business impact analysis that determines what actually must be recovered and how fast, the risk assessment and dependency mapping that identify single points of failure, the crisis management structure and decision authority, the communications plan for employees and customers and regulators, the recovery procedures for technology and facilities and people, the contractual and regulatory obligations that a disruption triggers, the insurance that responds, and the testing regime that makes the difference between a document and a capability. It closes with the first four hours of a real event, the after-action review that converts an incident into a capability, and a note on keeping the program proportionate to the organization.

Casey Scott McKayJune 2, 202525 min read

LitigationCivil Procedure

Fee Shifting and Litigation Cost Recovery Toolkit

A working kit for recovering and resisting litigation fees and costs. Section A is a fee-shifting map: federal statutes, the categories of state provision, and contractual clauses with model language. Section B is a lodestar worksheet with the billing judgment and apportionment tables filled in. Section C holds templates: a fee motion skeleton, a lead counsel declaration, a market rate declaration, a bill of costs schedule, an offer of judgment, a Rule 11 safe harbor letter, and fee settlement language. Section D outlines the opposition. Section E collects the primary authorities.

Casey Scott McKayJune 2, 202513 min read

LitigationEvidence

Federal Rule of Evidence 403 and Unfair Prejudice: A Practical Guide

Federal Rule of Evidence 403 lets a trial judge keep relevant evidence away from the jury when its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, or wasting time. It is among the most invoked rules in litigation, and the great majority of pretrial motions in limine turn on it. This guide explains, in plain language for lawyers and business owners alike, how the 403 balance actually works, what the Supreme Court's decision in Old Chief v. United States teaches about both sides of the scale, and how the rule governs the recurring evidence fights in commercial and trademark cases: demonstrative exhibits and illustrative aids under the new Rule 107, evidence of a party's size and wealth, character and other-acts evidence under Rules 404 and 609, and evidence of prior litigation. It covers the motion in limine as the vehicle, abuse-of-discretion review on appeal, limiting instructions under Rule 105 and the rest of the toolkit short of exclusion, and closes with a worked example and concrete takeaways for both proponents and opponents of evidence.

Casey Scott McKayJune 2, 202540 min read

Wills and EstatesEstate Planning

Estate Planning and Wealth Transfer Toolkit

An estate plan is a set of instructions that has to work on the worst day of a family's life, when the person who wrote it cannot explain anything. This toolkit builds one in the order that matters. It starts with the inventory and the ownership question that determines which assets a will can even reach, then covers the incapacity documents that get used far more often than the will does, the core dispositive instruments and the choice between a will-based and a trust-based plan, and the funding step that quietly determines whether a trust does anything at all. Later stages cover beneficiary designations and the coordination failures that cause most unintended outcomes, planning for minors and beneficiaries who need protection, tax and basis planning at current exemption levels, business succession, digital assets, fiduciary selection, and what actually happens during administration.

Casey Scott McKayJune 2, 202514 min read

CriminalDUI

DUI and DWI Defense: Stops, Testing, License Consequences, and the Criminal Case

A drunk driving case is two cases running on different clocks. There is a criminal prosecution with a beyond a reasonable doubt standard, and there is an administrative license suspension proceeding with a much lower standard and a deadline to request a hearing that is often ten days and is missed constantly. This article explains what justifies a stop and how long it may last, when a checkpoint is lawful, how field sobriety tests are administered and where they go wrong, the constitutional line between breath and blood testing after Birchfield and McNeely, how implied consent and refusal penalties operate, what a per se limit actually proves, how drug impairment cases differ, and the license, insurance, immigration, and employment consequences that frequently exceed the criminal sentence.

Casey Scott McKayJune 2, 202528 min read

ImmigrationRemoval Defense

Defending a Removal Case in Immigration Court: A Practical Guide

This guide walks a removal case from the first client meeting to the petition for review. It covers the intake that identifies every possible form of relief before anything is conceded, the notice to appear review that sometimes ends the case, the bond package that determines whether the client prepares from home or from detention, the relief applications and their deadlines, and the declaration and corroboration work that decides asylum cases. It explains how to prepare a client to testify, how to anticipate the government cross examination, and how to preserve issues for the Board and the court of appeals. It closes with post order options.

Casey Scott McKayJune 2, 202527 min read

Wills and EstatesFiduciary Litigation

Will Contests and Trust Litigation: Capacity, Undue Influence, and No-Contest Clauses

Estate and trust disputes look like ordinary civil litigation and behave differently in ways that matter from the first filing. The claims are largely fixed by statute, the deadlines are short and often jurisdictional, the key witness is dead, and evidentiary rules designed for exactly this situation constrain what the survivors may testify to. The two dominant theories — lack of capacity and undue influence — are frequently pleaded together and proved very differently, with undue influence turning on a burden-shifting presumption that arises from relationship and circumstance rather than from direct evidence. This article covers the grounds, who may sue and by when, how no-contest clauses actually operate, the fiduciary claims that run alongside a contest, and the drafting and execution practices that prevent most of it.

Casey Scott McKayJune 1, 202526 min read

CommercialConsumer Protection

Consumer Financial Protection Statutes: The FCRA, the FDCPA, the ECOA, and TILA in Practice

A business does not have to be a bank to be subject to consumer financial protection law. Pulling a credit report on an applicant, collecting a past-due invoice, offering payment plans, or extending trade credit each triggers a federal statute with statutory damages, fee-shifting, and a plaintiffs bar built around it. This article covers the four regimes that reach ordinary businesses most often. It explains the FCRA's permissible purpose and adverse action requirements, its separate rules for employment background checks, and the obligations of furnishers who report to credit bureaus. It then covers the FDCPA, including who counts as a debt collector, the validation notice, and Regulation F's communication rules, followed by the ECOA and Regulation B on credit discrimination and adverse action, and TILA and Regulation Z on disclosure and rescission. Later sections address UDAAP, state analogues, damages, and program design.

Casey Scott McKayJune 1, 202527 min read

Intellectual PropertyCopyright

Copyright Overview

Copyright is the body of law that protects original works of authorship—books, songs, code, photographs, films, and more—from the instant they are fixed in a tangible medium. This overview is the hub for everything copyright at mclaw.io: it explains what copyright covers and what it pointedly does not (the idea-expression line of Baker v. Selden and the originality floor of Feist), the six exclusive rights, who counts as an author, how long protection lasts, and how rights are transferred and clawed back. It walks through fair use as reshaped by Google v. Oracle and Warhol v. Goldsmith, the registration system and the Supreme Court's Fourth Estate rule, infringement and remedies, the DMCA, and the international picture under the Berne Convention. Worked hypotheticals make the doctrine concrete, and generous cross-links point you to deeper articles on registration, the DMCA, fair use, and more. It is a map of the whole territory, written so a judge, a lawyer, and a curious creator can all follow it.

Casey Scott McKayMay 29, 202545 min read

LitigationRemoval

Removal and Remand: Getting a Case to Federal Court and Keeping It There

Removal is a procedural right with unforgiving deadlines, and the party that gets it wrong loses a forum choice worth more than most substantive rulings in the case. This guide covers both sides. It starts with the jurisdictional bases for removal and the requirements each imposes, then the mechanics: the thirty-day clock and when it starts, the rule of unanimity among defendants, the forum defendant rule and the snap removal practice that has grown around it, and what the notice of removal must contain. It then covers remand, including the distinction between jurisdictional defects that can be raised at any time and procedural defects waived after thirty days, the one-year limitation on diversity removals and its bad faith exception, and fee awards. Later sections address fraudulent joinder, CAFA removals and their exceptions, complete preemption, and the strategic considerations on both sides.

Casey Scott McKayMay 28, 202527 min read

LitigationSanctions

Rule 11 Sanctions and Safe Harbor Checklist: A Practical Checklist

Rule 11 practice is procedural before it is substantive, and most motions fail on the safe harbor rather than on the merits. The rule requires a separate motion, served on the offending party and not filed, with twenty-one days to withdraw or correct — and a motion filed without that sequence is denied almost automatically. This checklist covers the pre-filing inquiry that prevents exposure, the exact safe harbor procedure for a party seeking sanctions, the response for a party receiving a motion, and the separate regimes that govern discovery conduct, attorney conduct that multiplies proceedings, and bad-faith conduct reachable only through the court's inherent power. It closes with citation verification, now the fastest-growing category of sanctions.

Casey Scott McKayMay 25, 20258 min read