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.

CommercialInsurance Claims and Coverage

Insurance Program Review Checklist: A Practical Checklist

An insurance program is a portfolio of contracts that most companies renew rather than review, tracking a business that has changed and a set of contractual promises nobody has read against it. The gap between what a company promised its landlord, its customers, and its lenders and what its program actually provides is the most common uninsured exposure in commercial practice, and it is found by reading two stacks of paper against each other once a year. This checklist runs that review: inventory the exposures including the dependency map that sizes business interruption, extract every contractual insurance requirement, then work line by line through the coverages, the valuation and sublimit provisions that determine what a claim pays, the claims-made mechanics, and the broker relationship and renewal calendar. It closes with the broker relationship, the documentation practices, and the renewal calendar that make the review repeatable rather than heroic.

Casey Scott McKayJuly 14, 202410 min read

CorporateSecurities

Regulation D Private Placement Checklist: A Practical Checklist

A private placement exemption is not a form you file; it is a set of conditions you must satisfy before the first offer goes out, and most failures happen in the first week of an offering rather than at closing. This checklist walks the decision that governs everything else, which is whether the offering will use general solicitation, and then the requirements that follow from it: accredited investor status and the verification standard that applies under Rule 506(c), the bad actor inquiry, integration analysis, and the disclosure obligations that exist whether or not a private placement memorandum is required. Later phases cover the closing mechanics, the Form D and state notice filings, transfer restrictions and legends, and the ongoing obligations that continue long after the money arrives. Used before the first conversation with an investor, it prevents the two failures that cannot be cured after the fact: an inadvertent general solicitation and a verification file that was never built.

Casey Scott McKayJuly 13, 20248 min read

TechnologyPrivacy

Privacy and Data Protection Toolkit: Building and Running a Privacy Program

This toolkit is a roadmap for building, running, and defending a privacy and data-protection program in the United States and across borders. It walks the program life cycle: mapping and inventorying personal data, standing up governance, providing notices and obtaining consent, minimizing and retiring data, and complying with the sectoral and state-law patchwork (HIPAA, GLBA, COPPA, CCPA/CPRA), the GDPR and international transfer rules after Schrems II, and biometric statutes. It closes with breach and incident response and vendor management. Each stage links to mclaw.io checklists and articles plus the controlling statutes, regulators, and leading authorities. It is written for privacy counsel, compliance leads, founders, and product teams who need both a strategic overview and the operative rule for each step.

Casey Scott McKayJuly 13, 202413 min read

Intellectual PropertyPatent

The Intersection of Design and Utility Patents: Navigating Concurrent Protection and Double Patenting Challenges

A single product can often be protected by both a utility patent (covering how it works) and a design patent (covering how it looks), and pursuing both is frequently the smartest intellectual property strategy a company can adopt. This article explains the foundational differences between the two regimes, the functionality bar that separates a protectable ornamental design from an unprotectable functional one, and the precise circumstances in which concurrent protection is available. It then works through the double patenting doctrine as it applies across patent types, including obviousness-type double patenting, the Carman Industries cross-reading rule and the patentee-favorable two-way analysis, the Section 121 divisional safe harbor, the common-ownership requirement, and the role and risks of terminal disclaimers (including the USPTO's withdrawn 2024 rulemaking). The article also surveys the very different infringement tests and damages rules that apply to each regime, including the design-patent total-profit rule of 35 U.S.C. Section 289 after Samsung v. Apple and the article-of-manufacture question, and the seismic change to design-patent obviousness wrought by LKQ Corp. v. GM. A detailed worked example ties the doctrines together for a single hypothetical product, and a practitioner FAQ closes the piece.

Casey Scott McKayJuly 11, 202453 min read

Labor and EmploymentUnions

Union Organizing and the NLRA: What Employers May and May Not Do

Most employers first encounter labor law after a petition is filed, when the rules that were broken were broken months earlier by managers who had never heard of them. This article explains what the National Labor Relations Act actually protects and what it forbids. It starts with Section 7 rights, which apply to nearly all private-sector employees whether or not a union is involved, and the protected concerted activity doctrine that reaches ordinary conversations about pay and working conditions. It then walks an organizing campaign from card signing through election, covering what supervisors may say and what they may not, the solicitation and distribution rules that must exist before a campaign begins, and the bargaining orders that can follow serious violations. Later sections address bargaining unit determinations, supervisor status, the duty to bargain in good faith, strikes and lockouts, Weingarten rights, decertification, and the work rules and handbook provisions that generate unfair labor practice findings at non-union employers, with a worked example, a supervisor briefing script, and an FAQ.

Casey Scott McKayJuly 6, 202425 min read

Intellectual PropertyTrademark Litigation

Polaroid Factors on Summary Judgment in the Second Circuit: A Practical Guide

In the Second Circuit, whether one trademark is likely to be confused with another is governed by the eight-factor test announced in Polaroid Corp. v. Polarad Electronics Corp. Likelihood of confusion is a fact-laden inquiry, which makes summary judgment the exception rather than the rule—but it is far from unavailable, and certain factors lend themselves to resolution as a matter of law much more readily than others. This guide explains, in plain language for lawyers and business owners alike, how courts in the Second Circuit (including the busy Eastern District of New York) apply each Polaroid factor on summary judgment, which factors most often drive a no-confusion ruling, and how Rule 56's "no genuine dispute" standard plays out factor by factor. It pays particular attention to the dissimilarity of marks, competitive proximity, the absence-of-actual-confusion inference from long coexistence, and the demanding evidentiary showing required to prove bad faith. It closes with a worked hypothetical, a frequently asked questions section, and concrete takeaways for both movants and non-movants.

Casey Scott McKayJuly 5, 202444 min read

Intellectual PropertyTrademark

Stone Creek v. Omnia: Knowledge Destroys Good Faith Under the Tea Rose-Rectanus Doctrine

In Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426 (9th Cir. 2017), the Ninth Circuit held that a junior user's mere knowledge of a senior user's mark destroys the "good faith" required for the century-old Tea Rose-Rectanus defense--and that internet commerce makes geographic "remoteness" far harder to prove. The case is a cautionary tale: the infringer was Stone Creek's own manufacturing partner, which recreated the STONE CREEK logo from Stone Creek's marketing materials and sold identical furniture to a Midwestern department-store chain for five years. This article traces the doctrine from its 1916-1918 Supreme Court origins through Stone Creek and the deeper circuit split it sharpened; explains how the Lanham Act's "Swiss cheese" registration system, its constructive-notice rule (15 U.S.C. § 1072), and its constructive-use rule (§ 1057(c)) interact with common-law territorial rights; and unpacks the remedies twist--the willfulness-for-disgorgement holding that the Supreme Court later abrogated in Romag Fasteners v. Fossil (2020). It closes with worked hypotheticals, practical guidance for brand owners, licensees, and litigators, an FAQ, and cross-links to related trademark resources. Written for judges, practitioners, and business owners alike.

Casey Scott McKayJuly 4, 202442 min read

Government BenefitsSocial Security Disability

Social Security Disability: SSDI, SSI, and the Five-Step Sequential Evaluation

Social Security disability is a two program system with one definition of disability, a five step decision process, and an appeals structure that most claimants abandon before reaching the stage where they were most likely to win. This article explains both programs and the eligibility rules that separate them, walks the sequential evaluation step by step with the evidence that matters at each, covers residual functional capacity and the vocational grid rules that decide the majority of cases, and takes the appeal from reconsideration through the ALJ hearing, the Appeals Council, and federal district court review. It also covers work incentives, overpayments, representative fees, and the interaction with workers compensation and other benefits.

Casey Scott McKayJune 30, 202429 min read

Labor and EmploymentHR Policies

Hiring With Background Checks: FCRA Compliance, Ban-the-Box, and Adverse Action

Running a background check is a regulated act, and the regulation comes from three directions at once. The Fair Credit Reporting Act governs the mechanics — what you disclose, what you authorize, what you send before and after a decision, and in what form. Title VII and the EEOC's guidance govern whether the criteria you apply have a discriminatory effect. And a growing body of state and local fair chance laws governs when you may ask, what you may consider, and what individualized assessment you must perform before rejecting someone. This guide walks the process end to end, from the job posting through the adverse action letter, identifies the specific defects that generate class actions, and covers the related screening practices that carry their own rules.

Casey Scott McKayJune 28, 202426 min read

FinanceLending

Negotiating a Commercial Loan Term Sheet

A term sheet looks like a page of numbers and is actually the entire loan agreement in outline, negotiated at the only moment when the borrower has leverage. Once it is signed, the definitive documents are drafted from it, and every provision the borrower did not address becomes the lender's form. This guide covers what to negotiate and in what order of priority: the structure and size of the facility, the borrowing base if there is one, pricing and fees including the ones that appear only at prepayment, the financial covenants and the definition of EBITDA that determines whether they are ever breached, the affirmative and negative covenants that constrain ordinary business decisions, the events of default and their cure periods, collateral and guaranties, and the conditions precedent that determine whether the loan actually funds. It closes with what a borrower should do before approaching any lender, and with the syndication and flex provisions that appear once a facility grows past the bilateral stage.

Casey Scott McKayJune 27, 202425 min read

LitigationMotions

Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants

A motion to dismiss is the first real fight in most federal cases, and it is decided on a record consisting of exactly one document. This guide explains how Rule 12 actually works: the seven enumerated defenses, the strict consolidation and waiver rules of Rule 12(g) and 12(h) that destroy more defenses than any judge ever does, and the sequencing questions courts face when jurisdiction, venue, and merits arguments arrive together. It covers the plausibility standard of Twombly and Iqbal in operational terms, including the two-step method courts actually use, the limits the Supreme Court reaffirmed in Erickson and Johnson v. City of Shelby, and the heightened pleading regimes of Rule 9(b) and the securities laws. It explains what a court may consider without converting the motion to summary judgment, the doctrines of incorporation by reference and judicial notice and how they are abused, and the standards for facial and factual attacks under Rule 12(b)(1). It then turns to strategy: when a motion is worth filing, when it merely educates the plaintiff, how to use Rule 12(e) and 12(f), how leave to amend works under Foman v. Davis, and how to write an opposition that survives. It closes with drafting checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayJune 25, 202425 min read

Labor and EmploymentPolicies and Procedures

Employment Law Toolkit: From Hiring Through Separation

Employment law is not one body of law but a dozen overlapping ones, and a small employer encounters them in a predictable sequence as each employee moves from applicant to alumnus. This toolkit follows that sequence. It covers what must be right before a job is posted, what an offer letter should and should not say, the classification decisions made at hire that determine years of wage exposure, the handbook and the policies that actually get litigated, the leave and accommodation machinery that trips up employers with no dedicated HR function, the documentation habits that decide termination cases long before termination, and the separation mechanics that turn a former employee into a plaintiff or into a signed release. Each stage links to the underlying articles and checklists and to the primary authority a practitioner will need.

Casey Scott McKayJune 25, 202414 min read