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.
Attorneys Fees and Costs: The American Rule and Its Many Exceptions
In the United States each side normally pays its own lawyer. That default—the American Rule—is why most small claims never get litigated and why fee-shifting statutes are among the most consequential provisions in American law. This article explains where the American Rule comes from, the five categories of exception, what it takes to be a prevailing party after Buckhannon and Farrar, how the lodestar is calculated and when it may be enhanced or reduced, why prevailing defendants almost never recover fees in civil rights cases, how a Rule 68 offer can strip a winning plaintiff of fees, what is and is not taxable as costs under section 1920, and how sanctions authority operates as a separate fee-shifting track.
Party Practice Toolkit: Third-Party Complaints, Intervention Motions, and Joinder Analyses
This toolkit collects the working papers of federal party practice, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rule, statute, or case. It begins with a joinder analysis worksheet and citizenship matrix that every new matter should start with, and a tender-of-defense letter to send before impleading anyone. The defendant's templates cover a Rule 19 motion outline, a third-party complaint, a motion for leave to file one late, crossclaim and Rule 13(h) paragraphs, and a Rule 21 severance motion outline. The intervention templates cover a motion to intervene with a memorandum outline, a proposed answer in intervention, a proposed order with conditions, and an opposition outline. The stakeholder's templates are an interpleader complaint skeleton and a proposed order for deposit, injunction, and discharge, and a post-removal joinder opposition and party deadline tracker close the set. A single fictional cold-storage dispute runs through every template.
Collecting and Authenticating Messaging and Social Media Evidence: A Practical Guide
This guide takes a litigator step by step from the first moment a text, chat, or post matters to a case through its admission at summary judgment and trial, and shows the opposing side what to do at each stage. It begins with decision points about the role the messages will play, who controls the source, and whether authorship will be disputed. The steps cover mapping sources and custodians, preservation and auto-delete settings, the custodian interview, choosing a collection method from screenshots to full forensic extraction and enterprise exports, review and processing, production formats and requests to the other side, the Stored Communications Act limits on subpoenas to platforms, and locking in authenticity through requests for admission, depositions, and stipulations. Later steps address authentication on summary judgment under Rule 56(c), certifications under Rules 902(11), (13), and (14), trial foundations, completeness and hearsay mapping, and the opponent's challenges, including fabrication and deepfake claims. A timeline and cost table, a worked example built on a departing-employee dispute, common mistakes, an FAQ, and takeaways close the guide.
Willful Patent Infringement and Enhanced Damages After Halo: Knowledge, Opinions of Counsel, and Section 298
This article explains how willful patent infringement and enhanced damages work after the Supreme Court's 2016 decision in Halo Electronics v. Pulse Electronics, and how the law reached that point from the mandatory treble damages of 1793, the affirmative duty of care of Underwater Devices, and the objective recklessness test of In re Seagate. It separates the two questions courts now ask, whether the infringement was willful (a jury question about deliberate or intentional infringement) and whether damages should be enhanced (a discretionary judgment for the court, usually guided by the Read factors), and tells the key cases as stories. It covers what counts as knowledge of a patent, including willful blindness, notice letters, and the district court split over knowledge supplied by the complaint itself. It explains what an opinion of counsel still accomplishes, what 35 U.S.C. 298 forbids, and how far privilege waiver reaches when a defendant relies on advice. It closes with the overlap with induced infringement and exceptional-case fees, an extended worked example, common mistakes, an FAQ, and practical takeaways for patent owners and accused infringers.
Reasonable Accommodation Under the ADA: The Interactive Process in Practice
The Americans with Disabilities Act asks employers to do something most management training never covers: hold a structured conversation, document it, and make an individualized decision. This article explains how. It starts with who is protected after the 2008 amendments broadened the disability definition to the point that coverage is rarely the real fight, then covers what makes someone qualified and how essential functions are determined, which is where most cases are actually won or lost. It walks the interactive process step by step, including what medical information an employer may request and from whom, and surveys the accommodations that arise most often: schedule changes, telework, leave, equipment, job restructuring, and reassignment. Later sections address undue hardship and direct threat, the special rules for pregnancy and religion, confidentiality obligations, and the documentation that decides litigation, with a worked example, a decision framework, and an FAQ.
Product Recall Readiness Checklist: A Practical Checklist
The cost of a recall is decided long before it happens, by whether the company can identify which units are affected and where they went. A manufacturer that cannot narrow the scope must recall everything, and the difference between forty thousand units and nine hundred thousand is the entire economics of the event. This checklist builds the readiness that determines that outcome: traceability infrastructure from lot codes on the product through distribution records to purchaser data, a complaint intelligence system that surfaces patterns rather than resolving incidents one at a time, a written plan with named decision-makers and reporting analyses for each applicable regulator, prepared notification and logistics capability, supplier and customer contract provisions that allocate the cost, and the mock recall exercise that reveals whether any of it works. It closes with the mock recall exercise, which is the only way to learn whether the traceability infrastructure can answer the scope question within twenty-four hours.
Trademark Preliminary Injunction Checklist: A Practical Checklist
This desk checklist turns a trademark preliminary injunction into phases that a movant and an opponent can work through under time pressure. Each task names its authority, with practical notes and red flags drawn from reported cases. It covers first-day triage, stopping the delay clock, the merits and harm records, the choice of vehicle, the survey decision, the opposition, bond, order drafting, the hearing, and what follows the ruling. A table collects the time limits that matter. It is built to be printed and marked up.
Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act: A Practical Guide
Before 2016, a company whose engineer walked out with the source code had to sue in state court under a patchwork of state trade secret statutes, or find a federal hook. The Defend Trade Secrets Act created a federal civil cause of action for misappropriation of trade secrets related to a product or service used in interstate commerce, and with it a federal forum, nationwide service, and an extraordinary ex parte civil seizure remedy. This guide covers the entire life cycle of a DTSA case. It explains what qualifies as a trade secret and why reasonable measures to maintain secrecy is where most cases are actually decided, how misappropriation and improper means are defined, and how the DTSA relates to state law under the Uniform Trade Secrets Act, which it does not preempt. It works through the emergency phase, including temporary restraining orders, expedited discovery, forensic imaging protocols, and the rarely used and frequently misunderstood seizure provision of section 1836(b)(2). It covers the trade secret identification fight, the inevitable disclosure doctrine and its state-by-state divergence, remedies including exemplary damages and attorney fees, the whistleblower immunity of section 1833(b) and the notice requirement that conditions enhanced remedies, and the criminal overlay of the Economic Espionage Act. It closes with strategy for both sides, a worked example, an FAQ, and related reading.
Negotiating an Oil and Gas Lease: A Practical Guide for Landowners
This guide is written for the landowner across the table from a landman. It explains what to establish before responding to any offer, how to value what you own, and then works through every clause worth negotiating in order of economic significance: the royalty fraction and the deduction language that can matter more than the fraction, the primary term, the Pugh and depth clauses that prevent a single well from holding everything forever, shut in and savings clauses, pooling limits, and warranty. It then covers the separate surface use agreement, what to do when the first check arrives, and how to verify the decimal interest that determines every payment thereafter.
Building a Trade Secret Protection Program Checklist: A Practical Checklist
This checklist walks a company through standing up a trade secret protection program that satisfies the "reasonable measures" requirement at the heart of the Defend Trade Secrets Act (18 U.S.C. §§ 1836-1839) and the Uniform Trade Secrets Act. It is organized into phases: inventorying and classifying confidential information, building physical, technical, and administrative security layers, layering contracts on top of the statutes (including the easily-missed Section 1833(b) whistleblower-immunity notice), training the workforce, and keeping the program alive through audits. Each phase pairs actionable checkboxes with the reasons behind them and the traps that sink trade secret claims. The goal is a documented, defensible record that converts valuable information into a legally protectable asset before anyone tries to take it.
Defending a Debt Collection Lawsuit: A Practical Guide
Seventy percent of consumer debt collection cases end in default judgment because the defendant never files anything. This guide is written to change that outcome. It explains what the summons actually requires and by when, how to write an answer that preserves every defense, which defenses succeed against debt buyers and why, how to use discovery and requests for admission to reach the documents the plaintiff usually does not have, when to move to compel arbitration and why it works in this setting, how to counterclaim under the FDCPA, how to settle on terms that do not create new problems, and what to do if a default judgment has already been entered.
Civil Damages Toolkit: Contract, Tort, Statutory, and Punitive Recovery
A working kit of damages instruments. Section A is a measures table covering the common claims with the formula for each. Section B is a lost profits worksheet with the fixed-versus-variable cost analysis that decides most commercial damages fights. Section C holds document templates: an itemization interrogatory, a damages document request set, an expert engagement scope, a demand letter framework, and a settlement valuation model. Section D outlines a motion to exclude and its opposition. Section E supplies jury instruction language and a verdict form. Section F collects the primary authorities.