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.

CriminalCriminal Procedure

Facing Criminal Charges: A Practical Guide for Defendants and Their Families

This guide is written for the person charged and the people helping them. It explains what to do and say in the first hour and the first day, how to prepare the release package that determines whether someone waits for trial at home or in jail, how to choose and work with counsel, what to expect at each court appearance, how to evaluate a plea offer including the collateral consequences that outlast the sentence, and how sentencing mitigation actually works. It also covers the mistakes that convert manageable cases into serious ones: talking to police, talking on recorded jail phones, violating release conditions, missing court, and contacting witnesses.

Casey Scott McKayMay 21, 202528 min read

LitigationAppeals

Appellate Practice Toolkit

Appeals are decided by two things that have nothing to do with persuasive writing: whether the error was preserved below, and whether the standard of review permits the court to do anything about it. A brilliant brief attacking a discretionary ruling, on an issue raised for the first time on appeal, loses. This toolkit therefore starts in the trial court, where preservation happens, and works forward: the objections and motions that keep issues alive, the appealability and deadline analysis that is jurisdictional, the standards of review that determine which issues are worth raising, assembling the record and the appendix, structuring and writing the brief to the court's rules, oral argument, and the post-decision options. It closes with what an appellate lawyer brought in before trial actually contributes.

Casey Scott McKayMay 21, 202512 min read

CommercialProduct Regulation

Food and Beverage Regulation: FDA Labeling, the FSMA, and State Cottage Food Laws

Food and beverage businesses are regulated by more agencies than almost any other consumer industry, and the boundaries between them are historical rather than logical. This article maps the framework: what makes a food adulterated or misbranded under the Food, Drug, and Cosmetic Act, how the label is actually constructed panel by panel, what the Food Safety Modernization Act requires of manufacturers and importers, when a claim converts a food into an unapproved drug, and how the USDA, TTB, state agriculture departments, and cottage food statutes divide up what the FDA does not cover. It also addresses the two exposures that end companies rather than merely costing them money: a recall handled badly, and the strict criminal liability that the Park doctrine imposes on responsible corporate officers. The recurring theme is that nearly every failure in this field is cheap to prevent before launch and expensive to remediate afterward.

Casey Scott McKayMay 20, 202525 min read

LitigationCivil Procedure

Attorney Fee Petition and Bill of Costs Checklist: A Practical Checklist

A two-sided checklist covering everything that determines a fee award. The first half runs the applicant's sequence: preserving entitlement at intake, timekeeping standards that survive review, deadline capture at judgment, the components of a complete petition, rate and hours evidence, voluntary billing judgment, apportionment, and the bill of costs with the section 1920 list spelled out. The second half runs the opposition, including the three targets that actually work and the arguments that do not. Sanctions-based fee claims and fee settlement structures are covered at the end.

Casey Scott McKayMay 20, 202510 min read

Family LawDomestic Violence

Domestic Violence Response Toolkit: Petitions, Safety Plans, and Enforcement

A working kit of domestic violence instruments. Section A holds petitioner documents: an incident log form, an evidence inventory, a petition narrative template with strong and weak versions compared, an exhibit index, and complete relief request language including the specific findings that trigger the federal firearms prohibition. Section B holds a safety plan worksheet, a go bag list, and a digital safety audit. Section C holds enforcement documents: a violation report form, a contempt motion outline, a renewal motion, and an interstate enforcement checklist. Section D holds respondent documents. Section E holds collateral protection requests for housing, employment, and immigration. Section F collects the primary authorities.

Casey Scott McKayMay 19, 202516 min read

Intellectual PropertyTrademark

Trademark FAQs: Frequently Asked Questions About Trademarks

A plain-English, consumer-friendly question-and-answer guide to United States trademark law for founders, small businesses, creators, and the merely curious. It explains what a trademark is and is not, whether you need to register, the difference between the TM and circle-R symbols, how long registration takes and what it costs, what a likelihood-of-confusion refusal means, and how to keep a registration alive for as long as you use it. It distinguishes trademarks from copyrights and patents, covers intent-to-use applications, common-law rights, dilution and the fair-use defenses, and international protection through the Madrid Protocol, and demystifies the dreaded Office Action and the Sections 8, 9, and 15 maintenance filings. Throughout, it cites the Lanham Act and leading cases and points to deeper mclaw.io guides so you can go as far down the rabbit hole as your situation requires. This article is general information, not legal advice.

Casey Scott McKayMay 16, 202550 min read

LitigationDiscovery

Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest

Privilege is the only evidentiary protection a company can lose through carelessness on an ordinary Tuesday and never get back. This article explains the two distinct doctrines that businesses rely on and constantly conflate: the attorney-client privilege, which protects confidential communications for the purpose of legal advice, and the work product doctrine, which protects materials prepared in anticipation of litigation. It covers who holds the corporate privilege and who may waive it, the control group and subject matter tests resolved by Upjohn v. United States, the special problems of in-house counsel who wear business and legal hats, and the primary purpose and significant purpose tests for dual-purpose communications after In re Kellogg Brown and Root. It works through work product under Rule 26(b)(3), the difference between ordinary and opinion work product, and the substantial need exception. It then addresses waiver in operational terms: Federal Rule of Evidence 502, clawback agreements and Rule 502(d) orders, subject matter waiver, the at-issue and advice-of-counsel waivers, and disclosure to auditors, insurers, and the government. Sections on the crime-fraud exception, the common interest doctrine, internal investigations, and privilege logs follow, with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayMay 14, 202525 min read

CommercialInternational Trade

Export Controls and Economic Sanctions: The EAR, ITAR, and OFAC for Ordinary Businesses

Export control and sanctions law reaches ordinary companies that do not think of themselves as exporters, because the definitions capture software downloads, cloud access, engineering emails, and hiring a foreign national. This article explains the three regimes an American business is most likely to encounter. It covers the Export Administration Regulations and how to classify an item, determine whether a license is required for a destination and end use, and apply a license exception, along with the deemed export rule that turns a domestic hire into an export. It then covers ITAR and the far stricter regime for defense articles and technical data, and OFAC sanctions, including the SDN List, the fifty percent rule that catches unlisted subsidiaries, and the difference between list-based and comprehensive programs. Later sections address antiboycott rules, screening and compliance program design, voluntary self-disclosure, and penalties, with a worked example, a screening checklist, and an FAQ.

Casey Scott McKayMay 13, 202525 min read

Intellectual PropertyCopyright

How to Register a Copyright with the U.S. Copyright Office

Copyright protection arises automatically when a work is fixed, but registration is what converts that protection into something an owner can actually enforce. This guide walks creators and their advisers through the complete registration process: confirming ownership, choosing the right application type, preparing a compliant deposit, completing the eCO application without the errors that trigger delays, and timing the filing to preserve statutory damages and attorney's fees. It anchors each step in primary authority, including Fourth Estate v. Wall-Street.com on the registration prerequisite to suit and Unicolors v. H&M on the knowledge required to void a registration for inaccuracy. It covers special situations by work type, complex authorship including works made for hire and joint works, the Copyright Claims Board small-claims tribunal, and the Copyright Office's evolving position on works created with artificial intelligence. Current fees and a pending fee proposal are noted so filers can budget accurately.

Casey Scott McKayMay 12, 202545 min read

Wills and EstatesEstate Administration

Probate and Estate Administration: A Practical Guide for Executors

Serving as an executor is a job with fiduciary duties, statutory deadlines, and personal liability, undertaken by people who have usually never done it before and who are grieving. This guide walks the administration in order. It starts with the threshold questions: whether probate is required at all, which assets pass outside it, and whether a simplified procedure is available. It then covers opening the estate, the personal representative's appointment and powers, and the immediate tasks in the first thirty days. It works through the inventory, creditor notice and the claims process with its priority rules, the tax filings including the estate tax return and the portability election that is worth filing even when no tax is due, and the family protections that override the will. Later sections address distribution, accountings, closing the estate, and the disputes that most often arise.

Casey Scott McKayMay 10, 202526 min read

TechnologyVendor Risk

Building a Vendor and Third-Party Risk Management Program

Most organizations do not know how many vendors they have, which of them hold personal data, or what any of the contracts say about notification and audit. That gap is the reason a growing share of security incidents, regulatory findings, and operational failures originate outside the company entirely. A workable program has four parts that reinforce each other: an inventory that is current, a tiering method that concentrates effort where the risk is, diligence proportionate to the tier, and contract terms that give the company information rights and remedies it can actually use. This guide covers building each part, the provisions worth negotiating and the ones that are not, ongoing monitoring, and the offboarding step that companies most often skip and most often regret.

Casey Scott McKayMay 10, 202526 min read

LitigationCivil Procedure

Preparing and Opposing a Fee Petition: A Practical Guide

This guide runs a fee petition from both sides. It begins where fee awards are actually won or lost — in daily timekeeping habits set long before judgment — then covers confirming entitlement, calendaring the short deadlines, assembling the motion and supporting declarations, proving the market rate, presenting hours in a form a court can review, exercising billing judgment before the court does it for you, apportioning unsuccessful claims, requesting enhancements, and claiming fees on fees. The second half runs the opposition: choosing three targets rather than nine hundred, documenting them, and using offer-of-judgment leverage. Costs and settlement of fee claims are covered separately.

Casey Scott McKayMay 6, 202528 min read