Insights

Casey Scott McKaySeptember 5, 202616 min read

Motion to Compel Arbitration Toolkit: Clauses, Declarations, and Appellate Strategy

Working templates for arbitrability practice. It includes a full model arbitration clause with delegation, class waiver, carve-outs, and an FAA fallback; the agreement-hierarchy sentence in three variants; a motion to compel with a proposed order; a formation declaration for online terms with the exhibit list courts expect; an opposition outline aimed correctly at a delegation provision; a formation-evidence package specification for engineering and legal; and an annual clause audit worksheet. Each carries drafting notes on what the language does and where it fails. Adapt everything to the jurisdiction and the parties.

Casey Scott McKaySeptember 5, 202616 min read

Merger Review Toolkit: HSR Filings, Second Request Responses, and Remedy Proposals

This toolkit supplies the working documents of a merger review, ordered by when they are used and weighted toward the pre-signing work where outcomes are decided. It opens with an overlap matrix, a document assessment protocol built around the themes agencies actually find, and an antitrust risk term sheet that translates those findings into the efforts covenant and reverse termination fee. It provides a reportability memorandum, a second request scope negotiation worksheet that fixes the budget, a review protocol, and a clean team protocol with the gun jumping rules business teams need. Later tools cover timing agreement terms, an economic submission outline, a customer outreach protocol, a divestiture package specification with upfront buyer criteria, a regulatory calendar covering the other reviewers, and a decree compliance calendar. Each item is annotated with the failure it prevents.

Merger Review and Second Requests: HSR Timing, Substantive Analysis, and Remedies

A second request turns a transaction into a litigation project, and most of what determines the outcome happens before anyone files. This article explains the substantive standard under Clayton Act Section 7, how the agencies actually analyze a merger — market definition, concentration, unilateral and coordinated effects, entry, and efficiencies — and how vertical and conglomerate theories differ from horizontal ones. It then covers the procedural machinery: the waiting period, the pull-and-refile device, what a second request demands and what complying with it costs, timing agreements, and the certification of substantial compliance that restarts the clock. It works through remedies and why structural divestitures are preferred, the litigation posture if no remedy is agreed, and the deal terms that allocate antitrust risk between buyer and seller. It closes with the documents that decide these cases and how to avoid creating the bad ones.

Casey Scott McKaySeptember 5, 202611 min read

Merger Clearance Checklist: A Practical Checklist

This checklist runs a transaction through antitrust review from diligence to post-closing decree compliance, in the order the work happens. It opens with the overlap mapping and document assessment that should precede signing, because that is where outcomes are largely determined, then the risk allocation terms those findings should set. It covers reportability, the initial waiting period and the pull-and-refile device, and the second request scope negotiation that fixes the entire budget in three weeks. Later sections address the substantive campaign run in parallel, certification and timing agreements, gun jumping controls and the clean team protocol, remedy design with an upfront buyer, the litigation posture, and the other regulators whose clocks set the closing date. Closing sections cover witness preparation, running the business during review, divestiture execution, and decree compliance.

Mass Arbitration: How Thousands of Individual Claims Became a Strategic Problem

Companies spent two decades building arbitration clauses to defeat class actions, and then plaintiffs' firms used those same clauses to file claims by the thousand. This article explains how mass arbitration works, why the filing-fee economics are so unforgiving, and what happened when businesses tried to escape the process they designed. It covers the AAA and JAMS mass arbitration rules, batching and bellwether structures, the unconscionability decisions that struck down the first generation of countermeasures, and the informal dispute resolution provisions that are now standard. It closes with what a defensible consumer arbitration program looks like and why the honest answer sometimes is to litigate.

Casey Scott McKaySeptember 5, 202616 min read

Mass Arbitration Toolkit: Clause Architecture, Batching Protocols, and Response Plans

Working templates for building and running a consumer or worker arbitration program that can absorb mass filings. It includes a complete dispute resolution article with informal resolution, batching, bellwethers, carve-outs and fairness terms; a claimant-matching declaration; a process arbitrator submission outline; a settlement segmentation worksheet; an IDR intake script and log schema; a litigation hold notice; and a tabletop exercise agenda. Each carries drafting notes on what the language does, why courts have enforced it, and where the first generation of countermeasures failed. A closing table sorts the common provisions into those courts have enforced and those they have struck down. Adapt every template to the jurisdiction, the institution's rules, and the specific business.

Casey Scott McKaySeptember 5, 20269 min read

Mass Arbitration Readiness Checklist: A Practical Checklist

A working checklist for preparing for mass arbitration before it happens and for responding when it does. It audits the clause against the provisions courts have enforced and the provisions they have struck down, then covers the four operational capabilities that matter more than drafting: claimant matching, formation evidence, informal dispute resolution at scale, and claims triage. The response sections walk day one through month four, including the process arbitrator submission and settlement segmentation. Separate sections cover the employment variant, governance, and a biennial tabletop exercise.

LitigationInternational Litigation

Managing Parallel Litigation in Two Countries: A Practical Guide

Two proceedings in two countries over one dispute is a management problem before it is a legal one, and the failures are failures of coordination. This guide covers the first forty-eight hours after a foreign action appears, the strategic assessment that determines whether to race, enjoin, stay, or settle, and the coordination machinery that keeps two sets of counsel from undermining each other. It works through the evidence conflicts that arise when one forum compels what another prohibits, the judgment recognition analysis that determines whether the race is worth running, and the witness and position discipline that decides credibility in both forums. It closes with the cost modelling that usually produces the settlement.

Casey Scott McKaySeptember 5, 202628 min read

Managing a Merger Investigation: A Practical Guide

This guide runs a merger through antitrust review in the order the work happens, beginning during diligence where the outcome is largely determined. It covers the overlap mapping and document assessment that should precede signing, the risk allocation terms that follow from them, and the filing and initial waiting period including the pull-and-refile device. The heart of the guide is second request management: negotiating the custodian and date scope that drives the entire cost, agreeing the review protocol, running the substantive campaign in parallel rather than afterward, and certifying substantial compliance at the right moment. Later steps address timing agreements, remedy design with an upfront buyer, the litigation posture if no remedy is reached, gun jumping controls, the other regulators nobody scheduled, and closing. A running example follows one transaction through eleven months.

CorporateExecutive Compensation

Management Rollover and Incentive Equity in Sponsor Deals: What the Team Actually Gets

In a sponsor buyout the management team is simultaneously a seller, a rollover investor, an employee, and the holder of an incentive award, and those four roles pull in different directions. This article explains what the team actually receives and what each piece is worth. It covers the rollover — whether it is taxable, what class of security it buys, and why rolling into the same instrument as the sponsor matters more than the percentage. It then works through the incentive pool: profits interests versus options versus restricted units, vesting on time and on return hurdles, and the tax elections that must be made within thirty days or not at all. The second half covers the provisions that determine whether the equity is ever realized — leaver definitions, call rights, transfer restrictions, drag and tag — and the parachute and deferred compensation rules that constrain the whole structure.