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.

HealthcarePrivacy and Data Security

HIPAA Business Associates and Cloud Computing

Almost every cloud service that touches electronic protected health information is a HIPAA business associate, and the 2016 HHS cloud guidance closed the door on the comfortable myth that a vendor who only stores encrypted data—or never looks at it—escapes the rules. This guide explains who counts as a covered entity, a business associate, and a subcontractor; why the "conduit exception" almost never saves a cloud provider; and exactly what a compliant business associate agreement must contain under 45 C.F.R. 164.504(e). It walks through the Privacy, Security, and Breach Notification Rules as they apply to the cloud, the encryption-based breach safe harbor, and the shared-responsibility model that determines who is on the hook when something goes wrong. It covers OCR enforcement and the steep tiered penalties, the sweeping 2024–2025 Security Rule overhaul proposal that would make encryption and multifactor authentication mandatory, and the special problems of pushing PHI into AI and analytics pipelines. The aim is a single, readable map a hospital administrator, a SaaS founder, a privacy lawyer, and a curious patient can all follow.

Casey Scott McKayJuly 30, 202441 min read

Intellectual Property and TechnologyCopyright

Copyright Infringement Claims Against Generative AI: The New York Times, Getty, and What Comes Next

Generative AI has triggered what may become the most consequential copyright litigation in decades, as publishers, photographers, authors, music rightsholders, and film studios sue the companies whose models were trained on their works. This article delivers the definitive, current-as-of-mid-2026 account of that fight: the first wave of merits rulings in Thomson Reuters v. ROSS, Bartz v. Anthropic, and Kadrey v. Meta; the record $1.5 billion Bartz settlement; the Getty UK judgment; and Germany's landmark GEMA v. OpenAI decision. It explains every legal theory in play—direct and secondary infringement, the four-factor fair use test as courts are actually applying it after Warhol v. Goldsmith, the intermediate-copying line that runs from Sega to Google Books, derivative-works and DMCA Section 1202 claims, and substantial similarity on the output side. It distinguishes the input (training) question from the output (memorization) question, surveys the emerging licensing market and the EU's divergent opt-out regime, and maps the realistic end-states. Written for content owners, AI developers, and the counsel advising both.

Casey Scott McKayJuly 28, 202450 min read

CorporateSecurities

Negotiating a Series A Term Sheet: Economics, Control, and the Terms That Matter

A Series A term sheet is two pages of economics and four pages of control, and founders reliably negotiate the wrong ones. Valuation absorbs the attention while the option pool placement, the liquidation preference structure, the protective provisions, and the board composition quietly determine both what the founders keep in an exit and who decides whether the exit happens at all. This guide works through the term sheet in the order it is usually written: the economic terms including the option pool shuffle and how preferences actually distribute proceeds, the control terms including board seats and the veto list, the shareholder terms that govern transfers and future rounds, and the founder-specific provisions that get inserted without discussion. It explains which terms are genuinely market, which are negotiable, and what each is worth.

Casey Scott McKayJuly 26, 202426 min read

LitigationAppeals

Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win

An appeal is not a second trial. It is a review of what the trial court did with what it was given, which means the appeal was largely won or lost in the district court by lawyers who may never have thought about it. This article explains federal appellate practice from that perspective. It covers appellate jurisdiction, including the final judgment rule, the narrow exceptions of section 1292, Rule 54(b) certification, and the collateral order doctrine; the jurisdictional deadline for the notice of appeal and the motions that toll it; and the standards of review that determine what an appellate court is actually permitted to do, with practical guidance on characterizing issues to obtain the most favorable standard. A long section addresses preservation, including the objection requirements at trial, the interaction between denied summary judgment motions and Rule 50 after Ortiz v. Jordan and Dupree v. Younger, and the plain error and harmless error doctrines. It then turns to craft: assembling the record, selecting issues, structuring the statement of the case, writing an argument that respects the standard of review, oral argument preparation, and post-decision options including panel rehearing, rehearing en banc, and certiorari. It closes with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayJuly 26, 202425 min read

Intellectual PropertyPatent

Patent Ownership, Assignments, and Standing: Chain-of-Title Problems That Sink Cases

A patent is only as enforceable as its chain of title, and the most expensive discovery in patent litigation is that the plaintiff does not own what it is asserting. This article explains who owns an invention at the moment of conception, why inventorship and ownership are different questions with different consequences, and how the Supreme Court's decision in Stanford v. Roche confirmed that even federally funded inventions vest first in the inventor. It works through assignment drafting, including the decisive difference between a present assignment and a mere promise to assign that the Federal Circuit drew in FilmTec, the treatment of future inventions, and state statutes that limit what an employer may claim. It then addresses standing: who may sue, what a patentee must hold to bring an action alone, when an exclusive licensee may sue in its own name, and why the Federal Circuit reframed much of this as a statutory rather than jurisdictional question in Lone Star Silicon. Sections on correction of inventorship, recordation and bona fide purchasers, security interests, government rights under Bayh-Dole, and shop rights follow, with a diligence checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayJuly 22, 202425 min read

LitigationCross-Border Litigation

Cross-Border IP Litigation and Service Toolkit: A Roadmap and Resource Library for International Disputes

This toolkit is a high-level roadmap for litigating intellectual property disputes that cross borders, from assessing the dispute through service abroad under the Hague Service Convention (with special attention to China), establishing jurisdiction, managing parallel proceedings and forum selection, coordinating global patent and trademark enforcement, gathering evidence abroad, enforcing foreign judgments, and deploying anti-suit injunctions in FRAND wars. Each stage links to mclaw.io articles and checklists plus the controlling conventions, statutes, and cases, including the Hague Service and Evidence Conventions, 28 U.S.C. § 1782, PACER, WIPO, and Water Splash v. Menon. It is written for litigators, in-house counsel, and IP owners coordinating enforcement across the United States, China, Europe, and beyond. Use the narrative to orient and the resource links to execute. The toolkit flags traps in service on Chinese defendants and the unsettled state of anti-suit and anti-anti-suit injunctions in standard-essential-patent disputes. Verify treaty reservations, central-authority requirements, and timelines at the official sources before relying on them.

Casey Scott McKayJuly 22, 202413 min read

Labor and EmploymentEmployee Benefits

Administering COBRA and Group Health Plan Compliance

Group health plan compliance is administratively unglamorous and legally unforgiving, and COBRA is the part that generates the most litigation because the violations are documentary and uniform. A notice sent late, sent to the wrong address, or missing a required element supports statutory penalties per day per beneficiary, and the same defective template goes to everyone. This guide covers COBRA end to end: who is covered, what events trigger continuation, how long it lasts, the four notices and their deadlines, premiums and termination, and how the requirements interact with Medicare, severance, and the Affordable Care Act marketplace. It then covers the surrounding group health plan obligations that share the same administrative infrastructure, from ERISA documents and reporting through the newer transparency and fee disclosure rules.

Casey Scott McKayJuly 22, 202426 min read

CriminalWhite Collar

White-Collar Criminal Investigations: Grand Jury Subpoenas, Internal Investigations, and Corporate Cooperation

A federal white-collar investigation announces itself in one of a few ways — a grand jury subpoena to the company, an agent at an employee's front door on a Saturday morning, a target letter, or a call from a prosecutor who is being unusually polite. What the company does in the first two weeks shapes everything that follows, because the decisions about preservation, privilege, employee interviews, and whether to self-disclose are made before anyone knows what happened. The single most consequential structural fact is that the company and its employees have interests that will diverge, often sharply, and the Upjohn warning that acknowledges this is both an ethical obligation and the thing that makes an employee stop talking. This article walks the anatomy of an investigation from the first subpoena through charging, cooperation credit, and resolution, with attention to the decisions that are genuinely reversible and the ones that are not.

Casey Scott McKayJuly 21, 202425 min read

LitigationCivil Rights

Section 1983 Civil Rights Litigation: Color of Law, Monell, and Qualified Immunity

Section 1983 is the statute that lets a person sue a government official for violating the Constitution, and almost every difficult question in the field is about who can be sued rather than what was done. This article works through the architecture: the color of law requirement, the individual capacity claim and the qualified immunity defense that dominates it, municipal liability under Monell and why respondeat superior does not apply, the Eleventh Amendment and the Ex parte Young workaround, and the fee shifting provision that makes the whole enterprise economically possible. It covers the most litigated claim types, the Heck bar that traps claims arising from arrests, and the practical realities of damages and settlement.

Casey Scott McKayJuly 19, 202429 min read

LitigationDamages

Damage Statistics: Administrative and Government Litigation

Suing the government is not like suing your neighbor. Before a dollar of damages is on the table, the plaintiff must find a statute in which the sovereign has consented to be sued, and each consent statute comes with its own ceiling, its own forum, and its own list of things it will not pay for. This guide maps the damages landscape across the major vehicles: the Federal Tort Claims Act, the Tucker Act and the Court of Federal Claims, Section 1983 civil-rights suits and the qualified-immunity wall, Bivens claims, Fifth Amendment takings, the Administrative Procedure Act (which buys you an injunction, not a check), and the Equal Access to Justice Act fee-shifting statute. It explains how damages are proven and capped when the defendant is a government, why honest "average award" numbers are hard to come by, and how a careful lawyer values a case against a public defendant. The hard figures the input promised do not exist in any reliable public dataset, so this article frames ranges and sources honestly rather than inventing verdict statistics.

Casey Scott McKayJuly 17, 202441 min read

TechnologyPrivacy

Children's and Student Privacy Toolkit: COPPA, FERPA, and Age-Appropriate Design

Three separate regimes govern data about young people, and they ask different questions. COPPA regulates collection from children under thirteen and answers with parental consent. FERPA and the state student privacy statutes regulate education records and answer with school control and use restrictions. The design codes and the minor provisions of state privacy statutes regulate the product experience for all minors and answer with defaults, regardless of what anyone consented to. This toolkit runs all three in sequence, from the audience analysis and data inventory through consent, retention and deletion, school-context obligations, design defaults, age assurance, and the international rules that make a single thirteen-year-old age gate insufficient for a global service.

Casey Scott McKayJuly 16, 202413 min read

ConstitutionalElection Law

Citizens United v. FEC and the Future of Federal Campaign Finance Reform

Citizens United v. FEC, 558 U.S. 310 (2010), held that the government may not ban independent political spending by corporations and unions, treating such expenditures as protected First Amendment speech. This article tells the story of how a documentary about Hillary Clinton became the most consequential campaign-finance decision in a generation, and traces the doctrine from Buckley v. Valeo through McConnell, Austin, SpeechNow, and McCutcheon. It explains, in plain language, the difference between contributions and expenditures, how Super PACs were born, and why "dark money" flows through 501(c)(4) nonprofits. It lays out the competing arguments of the Kennedy majority and the Stevens dissent without taking sides, then surveys the reform proposals that followed: the DISCLOSE Act, a constitutional amendment, public financing, and tighter coordination rules. The goal is a balanced, nonpartisan map of where federal campaign finance law stands and where it might go.

Casey Scott McKayJuly 15, 202456 min read