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.

LitigationDiscovery

Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case

Rule 37(e) rewrote the law of electronic evidence destruction in 2015, and a great deal of pre-2015 authority that lawyers still cite is no longer good law. The rule now forecloses the harshest sanctions unless the court finds that a party acted with the intent to deprive another party of the information, a standard far more demanding than the negligence or gross negligence tests several circuits had used. This article explains when the duty to preserve attaches and what it covers, how to issue and enforce a litigation hold that actually works, and how courts apply the two tiers of Rule 37(e): curative measures for prejudice under subsection (e)(1) and the severe sanctions of adverse inference, dismissal, and default under subsection (e)(2). It addresses the modern preservation problems that generate most disputes, including ephemeral and disappearing messages, collaboration platforms, personal devices, cloud accounts, text messages, and auto-deletion policies, and it explains the limits of a court's inherent authority after Goodyear v. Haeger. It closes with a hold template outline, a preservation checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayMarch 30, 202526 min read

ImmigrationCitizenship

Birthright Citizenship Around the World

Birthright citizenship—the idea that being born on a country's soil makes you its citizen—is one of the most consequential and least understood rules in the law. This article explains the two organizing principles of nationality, jus soli ("right of the soil") and jus sanguinis ("right of blood"), and shows how nearly every country blends them. It surveys the global map: unrestricted birthright citizenship now clusters in the Americas, while the United Kingdom, Ireland, India, Australia, the Dominican Republic, and others have narrowed or abolished it since 1980. It then examines the United States in detail, where the Fourteenth Amendment's Citizenship Clause, the 1898 decision in United States v. Wong Kim Ark, and the codifying statute at 8 U.S.C. § 1401 have long anchored a broad rule—and where a 2025 executive order seeking to limit that rule remains, as of mid-2026, blocked and unresolved before the Supreme Court. The piece adds worked hypotheticals, primary authority, and a frank account of the policy stakes, while being scrupulous about not overstating where the law currently stands.

Casey Scott McKayMarch 29, 202544 min read

TechnologyArtificial Intelligence

AI Governance Toolkit: Inventory, Risk Classification, and Controls

AI governance fails in a predictable way: a policy is written, a committee is formed, and nobody ever learns what the company is actually running. This toolkit is built the other way around, starting with discovery and inventory and treating documentation as the output of a process rather than its substitute. It covers building an inventory that includes the tools procurement never saw, classifying systems by risk in a way that maps to the obligations that follow, running impact assessments that produce decisions rather than paper, designing human oversight that can actually override a model, testing for bias and accuracy on a schedule, giving notice where notice is required, and handling AI incidents that are not security incidents. It closes with the governance layer: policy, training, vendor management, board reporting, and the annual review that keeps the whole thing from decaying.

Casey Scott McKayMarch 29, 202515 min read

LitigationCivil Procedure

Damages Proof and Expert Model Checklist: A Practical Checklist

A working checklist for the damages side of a civil case, run in the order the case runs. It covers the damages intake, the preservation steps that keep accounting data readable, what must be pleaded and when, the discovery that builds a but-for world, a line-by-line review of an expert report before it is served, the exclusion analysis for attacking the other side's model, trial and verdict form items, and the post-judgment work on interest, costs, and collection. A defense column runs alongside throughout.

Casey Scott McKayMarch 26, 20259 min read

CorporateCorporate Transactions

Buying and Selling a Small Business: From Letter of Intent to Closing

Most small business sales are the largest financial transaction the parties will ever undertake, and most are negotiated with less structure than a commercial lease. This article walks the deal from first conversation to post-closing, explaining what each document does and where the money actually moves. It covers the three deal structures and why asset purchases dominate the lower middle market, the tax and liability consequences that drive the choice, and the successor liability doctrines that can defeat the buyer's expectation of a clean start. It explains the letter of intent and why exclusivity is the seller's most expensive concession, how due diligence should be scoped and what it usually finds, and the purchase price mechanics that determine the number actually received: working capital adjustments, earnouts and their disputes, escrows and holdbacks. A long section addresses the purchase agreement itself, including representations and warranties, disclosure schedules, indemnification with baskets, caps and survival periods, sandbagging clauses, material adverse effect definitions, and closing conditions. It closes with employment and IP considerations, the closing and post-closing mechanics, a worked example, checklists, an FAQ, and related reading.

Casey Scott McKayMarch 26, 202525 min read

Family LawDivorce

Divorce and Family Law Toolkit: Petitions, Disclosures, Parenting Plans, and Orders

A working kit of family law instruments. Section A holds worksheets: a marital balance sheet with after tax columns, an asset characterization and tracing worksheet, and a business income add back schedule. Section B holds pleadings and motions: a petition outline, a temporary orders motion, a modification motion, and a contempt motion. Section C holds a full parenting plan template with every provision that prevents future motions. Section D holds settlement agreement clauses: property division, refinance deadlines with consequences, QDRO obligations, support with all four terms decided, life insurance security, and tax allocation. Section E holds family law discovery requests. Section F holds a post decree task list. Section G collects the primary authorities.

Casey Scott McKayMarch 24, 202516 min read

Real EstateTax

1031 Like-Kind Exchange Checklist: A Practical Checklist

A like-kind exchange is a deadline exercise with one absolute prerequisite: the qualified intermediary must be engaged and the assignment in place before the relinquished property closes, because once the taxpayer has the right to receive the proceeds no subsequent structure can fix it. This checklist runs the transaction chronologically from listing through the tax return, calls out the two statutory deadlines that cannot be extended, and flags the traps that end otherwise sound exchanges: a December closing without a return extension, a single identified property that falls out of contract, unreplaced debt producing boot in a completed exchange, and an intermediary who is a disqualified person because they are the taxpayer's own accountant. It closes with the reporting the exchange ultimately lives or dies on, and with the reverse and improvement structures worth considering when the replacement property has to come first. The identification rules get their own phase, since that is where most failed exchanges fail.

Casey Scott McKayMarch 24, 20258 min read

LitigationMass Torts

Practicing in an MDL: A Practical Guide for Plaintiff and Defense Counsel

This guide is written for the lawyer who has cases in an MDL and needs to know what to do rather than what an MDL is. It covers the JPML petition and opposition, applying for leadership and what the role actually requires, how to keep common benefit time in a form that will be approved, the case management orders that govern everything and how to read them, fact sheet and registry compliance that determines whether your cases survive, the general causation fight, bellwether selection strategy, and the settlement participation decision including the informed consent obligations that apply to every case in your inventory. It closes with lien resolution and remand.

Casey Scott McKayMarch 23, 202527 min read

Intellectual Property and TechnologyCopyright

The Right to Repair Movement: IP Implications for Manufacturers and Consumers

The right to repair movement has crossed from advocacy into enforceable law, reshaping how manufacturers may use copyright, the DMCA, patents, trademarks, and trade secrets to control products after the sale. This article maps the landscape as of mid-2026: at least eight U.S. states with enacted electronics-repair statutes, the new wave of parts-pairing bans, the EU's Right to Repair Directive, the FTC's antitrust suit against John Deere, and the Copyright Office's expanding triennial DMCA exemptions. It explains each intellectual-property lever manufacturers deploy to restrict repair and exactly where the law now blunts it, anchoring the doctrine in primary authority such as Impression Products v. Lexmark, Chamberlain v. Skylink, and Automotive Body Parts Ass'n v. Ford. To keep the analysis concrete, it follows a hypothetical manufacturer and a hypothetical independent shop through the compliance questions the new regime forces. Written for manufacturers, independent repairers, aftermarket suppliers, and the counsel advising them.

Casey Scott McKayMarch 22, 202541 min read

Real EstateCommercial Ownership

Title Insurance and Curing Title Defects: A Practical Guide

Title insurance is the only major insurance product that pays for losses arising from events that already happened, and understanding it means understanding that the premium buys two things: a search that finds problems before closing, and an indemnity for the problems the search missed. Most of the value is in the first. This guide covers how a title search and commitment are assembled and how to read the three schedules, what the standard exceptions actually exclude and how each is removed, the endorsements that matter in a commercial transaction, and the curative work that resolves the defects a search turns up — from a misspelled name to an open mortgage from 1974 to a break in the chain requiring a quiet title action. It closes with how claims are made and what the policy actually pays.

Casey Scott McKayMarch 21, 202526 min read

TechnologyContract

Software License Agreement Review Checklists: A Complete Toolkit

This toolkit pairs working review checklists with the explanatory prose a reviewer needs to use them well. It walks provision by provision through a software license agreement—license grant, license metrics and audit rights, SLAs, data rights, IP, warranties, indemnification, limitation of liability, term and termination, and the boilerplate that bites—explaining what each clause does, why it matters, and what good, acceptable, and dangerous versions look like in 2026. It grounds the practical guidance in the governing law: the license-versus-sale distinction (Vernor v. Autodesk), clickwrap and browsewrap enforceability (ProCD, Specht, Nguyen), scope-of-use as copyright infringement (Adobe v. One Stop Micro), anti-assignment traps (SQL Solutions v. Oracle), the UCC's warranty and conspicuousness rules, the Bankruptcy Code's Section 365(n) and ipso facto limits, and the modern data-protection overlay (GDPR, CCPA/CPRA, HIPAA, the 2024 HIPAA Security Rule proposal). Separate tracks serve vendors and customers, SaaS and on-premise deployments. Use it to review a contract systematically, spot the red flags, and prioritize what to negotiate.

Casey Scott McKayMarch 21, 202575 min read

Intellectual PropertyTrademark Litigation

Trademark Cancellation in Federal Litigation: A Practical Guide

A federal trademark registration is powerful but not bulletproof—it can be cancelled, and the register corrected, when the registration should never have issued or should no longer stand. This guide explains, in plain language for lawyers and business owners alike, how cancellation works, with a focus on cancellation inside federal litigation under Section 37 of the Lanham Act. It compares the available venues—the Trademark Trial and Appeal Board, the district court, and the USPTO's newer ex parte proceedings—maps the grounds for cancellation and how incontestability narrows them, and works through the issues that decide real cases: who is entitled to bring the claim after Lexmark, the demanding fraud-on-the-USPTO standard after In re Bose, cancellation for nonuse and abandonment against the famously low use-in-commerce threshold, genericness and functionality, intent-to-use defects, and the consequences of a "primarily merely a surname" finding. It addresses whether cancellation can be won on summary judgment, the preclusive reach of TTAB decisions after B&B Hardware, the district court's power to rectify the register, and closes with a worked example and practical takeaways for both sides.

Casey Scott McKayMarch 20, 202543 min read