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.

TechnologyInternet

Website Accessibility Remediation Checklist: A Practical Checklist

Website accessibility litigation is high-volume, low-value, and highly repeatable, which means the cheapest defense is a documented remediation program rather than a settlement. This checklist works through legal exposure first, because the answer differs by circuit and by whether the business has a physical location, then moves to the technical work: an audit combining automated scanning with manual keyboard and screen reader testing, prioritized remediation of the defects that actually block users, and the governance that keeps a remediated site from regressing. Separate phases address mobile apps, PDFs and third-party content, overlay widgets and why they are not a defense, procurement language for new vendors, and what to do in the first week after a demand letter arrives. The through-line is documentation: an audit, a prioritized plan, and dated records are worth more in defending a claim than any single technical fix.

Casey Scott McKayDecember 10, 20249 min read

CommercialInsurance Claims and Coverage

Handling an Insurance Claim After a Property Loss

A first-party property claim is a contractual process with deadlines, documentation requirements, and a built-in tension between an insured who wants to be made whole and an insurer whose adjuster is measuring the loss. Most underpayments are not the result of bad faith; they are the result of an insured who did not document the loss, did not understand the valuation provisions, and accepted the first number. This guide covers the sequence: the first forty-eight hours and the duty to mitigate, giving notice under every potentially applicable policy, documenting the damage in a form the policy's proof of loss will accept, how adjusters work and when to retain your own, the valuation provisions that determine the payment, the business interruption claim that is usually larger than the property claim and always harder to prove, the appraisal process, and what to do when the claim is denied or underpaid. It closes with subrogation, mortgagee interests, and the claim file an insured should build from the first hour, because nearly every underpayment traces to documentation that was never created.

Casey Scott McKayDecember 9, 202425 min read

CorporateSecurities

Preparing Your Startup for Capital Raising—A Comprehensive Guide

This is the pre-raise readiness playbook for founders who want to walk into a fundraise already "diligence-ready"—the legal, structural, and record-keeping state in which an investor's lawyer can open your data room, run the standard checklist, and find clean, complete, internally consistent answers. It explains why venture-track companies choose a Delaware C-corporation, how to keep a cap table that reconciles to signed documents, and how founder vesting and the Section 83(b) election work, including the absolute 30-day filing deadline under Treasury Regulation Section 1.83-2(b). It covers IP chain of title from founders and contractors, employee equity (ISOs under IRC Section 422, NSOs, and the Section 409A valuation safe harbors of Treasury Regulation Section 1.409A-1(b)(5)), corporate housekeeping, good standing, financial statements, and the construction of a real virtual data room mirroring how diligence counsel actually work. It maps the securities-law exposure prior raises can leave behind under Regulation D, closes with the landmines that kill or reprice deals, a worked example, and a detailed FAQ, and cross-links to the related capital-raising and document articles in this series. It is written so a founder, a lawyer, and a judge can all follow it, and every term of art is defined in plain language the first time it appears.

Casey Scott McKayDecember 8, 202462 min read

LitigationJudgment

Collecting a Judgment: Discovery in Aid of Execution, Liens, Levies, and Garnishment

Winning a lawsuit and getting paid are different projects, and the second one is usually harder. A money judgment is not an order to pay; it is a license to use the state's collection machinery, and nothing happens until the creditor uses it. This article explains that machinery from the first day after entry through final satisfaction. It covers the stay of execution and when enforcement may begin, the discovery tools that let a creditor find assets including the judgment debtor examination and third-party subpoenas, and how to record a judgment lien against real property. It then works through the enforcement remedies themselves: writs of execution and levies on tangible property, bank account levies, wage garnishment and the federal caps under the Consumer Credit Protection Act, charging orders against interests in partnerships and limited liability companies, turnover orders, receiverships, and contempt. Sections on exemptions and how debtors use them, fraudulent transfer claims under the Uniform Voidable Transactions Act, enforcing judgments in other states and countries, judgment renewal and post-judgment interest, and the bankruptcy filing that stops everything follow, with a strategy checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayDecember 7, 202425 min read

CommercialAnti-Corruption

The Foreign Corrupt Practices Act: Anti-Bribery, Books and Records, and Third-Party Risk

The Foreign Corrupt Practices Act is enforced against companies that never intended to bribe anyone, through third parties they did not supervise, and proven with accounting provisions that require no corrupt intent at all. This article explains how it actually works. It covers the anti-bribery provision element by element, including the contested definitions of foreign official and instrumentality, what counts as anything of value, and the narrow facilitating payment exception and affirmative defenses. It then covers the accounting provisions, which apply only to issuers but account for most enforcement, and which reach conduct with no connection to bribery. A long section addresses third-party intermediaries, where the great majority of exposure originates, with practical diligence and contracting guidance, followed by gifts and hospitality, charitable contributions, hiring, successor liability in acquisitions, the UK Bribery Act comparison, and enforcement policy including voluntary self-disclosure and declinations.

Casey Scott McKayDecember 5, 202427 min read

LitigationPre-Litigation Practice

Responding to a Cease and Desist Letter: A Practical Guide

A cease and desist letter is a demand, an offer to negotiate, and an attempt to establish knowledge for a later willfulness claim, all at once. The recipient's first decisions — whether to preserve, whether to respond, whether to stop the conduct, and whether to sue first — are made under time pressure with incomplete information, and they shape everything that follows. This guide covers what to do in the first forty-eight hours, how to evaluate the underlying claim on its merits and on the sender's real leverage, when a declaratory judgment action makes sense and what makes one available, how to draft a response that advances the recipient's position rather than creating admissions, and how the analysis differs across the recurring categories: trademark, copyright, patent, trade secret, restrictive covenant, defamation, and contract. It closes with the sender's perspective, an intake checklist, and a note on why the first instinct — to answer the accusation personally and immediately — is the one that causes the most damage.

Casey Scott McKayDecember 5, 202425 min read

LitigationCivil Litigation Strategy

Evaluating and Assessing a Civil Case

Evaluating a civil case is the discipline of deciding, before you spend real money, whether a claim is worth bringing or worth fighting. This guide walks through the full assessment: intake and conflicts, the elements of the claim and who bears the burden of proof, the separate questions of liability and damages, whether any judgment can actually be collected, threshold defenses like the statute of limitations and jurisdiction, and the economics of fee arrangements and litigation budgets. It then turns numbers into decisions using decision trees and expected-value analysis to find a rational settlement range. Worked hypotheticals and primary authority make the framework concrete for clients, counsel, and the occasional skeptical judge. The aim is to replace gut feeling with a repeatable method for separating cases worth pursuing from cases worth declining.

Casey Scott McKayDecember 4, 202431 min read

Intellectual PropertyTrademark Litigation

Bench Trial vs. Jury Trial Issues in Trademark Litigation: A Practical Guide

A single trademark case is often part jury trial and part bench trial—some issues go to a jury, others to the judge—and which is which is fixed by the Seventh Amendment line between legal and equitable claims. This guide explains, in plain language for lawyers and business owners alike, how that line is drawn and why it shapes trial strategy from the first draft of the complaint. It maps which trademark issues are jury-triable (actual and statutory damages, and the confusion and validity facts that underlie them) and which are bench-triable (injunctions, the accounting of profits, cancellation, and the equitable defenses), works through the Supreme Court trilogy—Beacon Theatres, Dairy Queen, and Curtis v. Loether—that forces shared facts to the jury first, and confronts the genuinely unsettled question of whether disgorgement of profits carries a jury right after Hard Candy v. Anastasia. It surveys the equitable relief available and the burdens to obtain it (the eBay factors and the Trademark Modernization Act's presumption of irreparable harm), explains how courts bifurcate trials and police that bifurcation, and closes with a worked example, a strategic playbook for each side, and an FAQ.

Casey Scott McKayDecember 4, 202441 min read

Real EstateFair Housing

Fair Housing and Lending Discrimination: Disparate Treatment, Disparate Impact, and Enforcement

Housing discrimination is rarely announced. It happens through a returned call that never comes, a quoted rent that is higher for one caller than another, a neighborhood suggestion framed as helpfulness, an algorithm that scores an applicant, and an appraisal that reads the neighborhood rather than the house. This article explains what the Fair Housing Act prohibits and who it covers, how disparate treatment and disparate impact claims are actually proved, why tester standing exists, what reasonable accommodations and modifications require, the accessible design requirements that apply to newer multifamily housing, how lending discrimination is regulated under the Equal Credit Opportunity Act and surfaced through HMDA data, and the four enforcement paths available to a person who has been discriminated against.

Casey Scott McKayDecember 3, 202429 min read

TechnologyInternet

Website and Mobile App Accessibility Under the ADA: WCAG, Litigation Risk, and Remediation

Thousands of federal lawsuits are filed every year alleging that a website or mobile app is inaccessible to people with disabilities, and the vast majority settle quickly because the legal question is unsettled while the technical question usually is not. This article explains the state of the law and, more usefully, what to actually do about it. It covers whether and when a website is covered by Title III of the Americans with Disabilities Act, the circuit split over whether a physical place of public accommodation is required and the nexus test that governs in the Ninth Circuit after Robles v. Dominos Pizza, the Department of Justice's 2024 rule adopting a technical standard for state and local government websites and what it signals for private entities, and the state law overlay that supplies statutory damages where the federal statute does not. It then turns to engineering: what the Web Content Accessibility Guidelines actually require, the small number of defects that generate most complaints, why automated scanners catch only a fraction of them, and why accessibility overlay widgets have become a liability rather than a solution. It closes with a remediation program, a demand-letter response playbook, a worked example, an FAQ, and related reading.

Casey Scott McKayDecember 1, 202426 min read

LitigationGovernment Litigation

Sovereign Immunity and Suing the Government: The FTCA, Section 1983, and State Tort Claims Acts

Suing a government defendant is procedurally unlike suing anyone else, and the procedural traps are more often fatal than the substantive defenses. Every claim begins with a waiver of sovereign immunity, and the waiver defines the forum, the deadline, the available damages, and whether a jury will hear the case. This article works through the principal routes: the Federal Tort Claims Act with its mandatory administrative claim and its discretionary function exception, Section 1983 against state and local officials with its Monell and qualified immunity limits, the narrowing Bivens remedy against federal officers, Eleventh Amendment immunity and the Ex parte Young workaround, and state tort claims acts with their short notice periods and damages caps. It closes with the deadlines that dispose of more of these cases than any doctrine.

Casey Scott McKayDecember 1, 202425 min read

Labor and EmploymentArbitration

Employment Arbitration Agreements After Epic Systems and the EFAA

Employment arbitration agreements are simultaneously more enforceable and more limited than they were a decade ago. Epic Systems settled that class and collective action waivers are enforceable, and the Supreme Court has continued to remove obstacles to compelling arbitration. At the same time, Congress carved sexual assault and sexual harassment claims out of the Federal Arbitration Act entirely, state legislatures have tested the boundaries of preemption, transportation worker exemptions have expanded, and mass arbitration has turned the employer-favorable fee structure into a liability. This article covers what the Federal Arbitration Act does and does not reach, how the EFAA operates and how broadly it applies, the doctrines that still defeat agreements, and how to draft and administer a program that actually works.

Casey Scott McKayNovember 30, 202425 min read