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.
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.
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.
Online Trademark Enforcement Toolkit: Platform Notices, Test Purchase Records, and Contributory Liability Demands
This toolkit collects the working documents of online trademark enforcement, each introduced by its purpose, its owner, and when to use it, and followed by drafting commentary tied to the governing statutes and cases. The evidence templates come first: a triage worksheet that sorts listings into counterfeit, gray market, altered, and lawfully resold goods, a listing capture log, test purchase instructions for investigators, a test purchase record with a chain-of-custody log, a product examination report, and a declaration form under 28 U.S.C. § 1746. The notice templates follow: listing-level platform notices, an account-level escalation request, and the enforcement notice log that becomes the central exhibit in any contributory infringement dispute. The demand templates include a contributory liability letter to a marketplace or host built on the Inwood and Tiffany v. eBay knowledge standard, variant paragraphs for landlords, payment processors, ad networks, and print-on-demand platforms, a preservation demand, a demand letter to an identified seller, and a keyword advertising letter to a competitor. For the other side of the table, the toolkit provides a seller's appeal, a brand owner's retraction, and an intermediary's response letter with a notice-handling protocol, and it ends with a Schedule A defendant chart, an FAQ, and practical takeaways.
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.
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.
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.
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.
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.
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.
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.
Video Privacy Toolkit: Consent Language, Pixel Audits, and Litigation Response
This toolkit gives working papers for managing Video Privacy Protection Act risk and disputes, ready to copy and adapt. It includes a video inventory, a network audit protocol and data-flow grid, an audience and forum matrix, and a route decision memo. It offers consent language in several placements, with a log schema tied to the statute's elements, and a vendor clause bank. For disputes it provides a hold notice, demand-letter responses, a motion to dismiss outline organized by circuit, arbitration clause notes, an exposure worksheet, and a plaintiff's intake questionnaire with discovery topics. Each paper is introduced by its purpose, owner, and timing, and drafting notes tie it to authority.
Failure-to-Function Refusal Response Checklist: A Practical Checklist
This checklist turns a USPTO failure-to-function or ornamental refusal into a sequence of specific tasks, from docketing the response deadline to registration, appeal, or a better refiling. It is organized in phases: intake and deadlines, a specimen and drawing audit, classification of the refusal, fact and evidence gathering for each refusal type, strategy and concessions, drafting, filing, and the handling of a final refusal through reconsideration and ex parte appeal. Each item names the governing statute, rule, or case and adds a short practical note. Red-flag boxes mark the points where responses most often fail, including manufactured specimens, material alterations, waived alternative claims, and evidence held back until the record has closed. A deadlines table, a phase for third parties who want to stop a message from registering, a short worked example, and a list of common failure points close the checklist.