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.

TechnologyData Security

Data Breach Response and Notification: The Fifty-State Patchwork, Regulators, and Litigation

A data breach is an operational crisis with a legal deadline attached, and the deadline usually arrives before the facts do. Every state has a notification statute, they define covered information and trigger notification differently, and a single incident affecting customers nationwide requires satisfying all of them simultaneously along with any sector-specific federal regime that applies. The decisions that determine both regulatory exposure and litigation outcome are made in the first week: how the forensic investigation is structured and whether it is privileged, whether to pay a ransom, what the notification says, and what the company tells regulators and the market. This article covers the first seventy-two hours, the notification analysis across state and federal regimes, the litigation that follows, and the preparation that makes all of it survivable.

Casey Scott McKayApril 18, 202427 min read

HealthcareHealthcare Transactions

Structuring a Management Services Organization for a Medical Practice

Building a management services organization means constructing a two-entity structure that lets non-physician capital own the economics of a medical practice without owning the practice itself. The design problem is that the same features making the structure investable — long-term contracts, control over the professional entity's ownership, and a fee capturing most of the margin — are the ones that make it vulnerable to a corporate practice or fee-splitting challenge. Getting it right means researching the specific profession in the specific state, drafting the management agreement to leave clinical authority where it belongs, supporting the fee with a valuation, and then operating consistently with the documents rather than as a single business. This guide walks the structuring decisions in sequence, the documents and what each must contain, the regulatory filings and approvals required, and the operating discipline that keeps the structure defensible.

Casey Scott McKayApril 13, 202426 min read

LitigationClass Actions

Class Action Defense Toolkit: From Complaint Through Settlement Approval

A class action is a different animal from an ordinary case because the certification decision, not the merits, usually determines the outcome. This toolkit is organized around that fact. It covers the first thirty days, including the removal analysis under the Class Action Fairness Act and the preservation and hold obligations that attach immediately, then the early motions that can end or reshape the case, the discovery strategy that builds a certification record rather than a merits record, and the certification fight itself, element by element, with attention to the damages model requirement that has decided many cases. Later stages cover interlocutory appeal, the decision framework for settlement, and the approval process, which since the 2018 amendments requires the parties to give the court a real evidentiary basis rather than a stipulation.

Casey Scott McKayApril 12, 202415 min read

Legal ResourcesAccess to Justice

Small Claims Court: Suing and Defending Without a Lawyer

Small claims court is the only part of the American legal system designed to be used without a lawyer, and it works better than its reputation suggests for the kinds of disputes it was built for. This article explains what small claims court can and cannot do, how to decide whether a claim belongs there, how to identify and serve the right defendant, how to build a case out of documents and photographs, what actually happens at a hearing and how it differs from a trial, and how to collect a judgment once you have one. It also covers defending a small claims case, the arbitration clauses that can move a dispute out of court entirely, and the appeal rights that vary sharply between states.

Casey Scott McKayApril 11, 202429 min read

Intellectual PropertyTrademark

Recording a Trademark Assignment: A Practical Checklist

When a registered or applied-for trademark changes hands, the new owner should record the assignment with the USPTO so the public record reflects the true owner. This checklist guides counsel through structuring a valid assignment that transfers the mark together with its goodwill, avoiding the assignment-in-gross and intent-to-use anti-trafficking traps, conducting chain-of-title due diligence, drafting the assignment, recording it through the USPTO Assignment Recordation system, and confirming downstream records. It explains why recording matters even though it is not strictly required for validity, and how an improper assignment can void rights. WHY notes and traps accompany each phase. Verify current USPTO recordation procedures and fees before filing.

Casey Scott McKayApril 8, 20245 min read

Real EstateLandlord Tenant

Landlord-Tenant Toolkit: Notices, Repairs, Deposits, and Court Filings

A working kit of landlord-tenant instruments. Section A maps remedies to conditions and shows which statutes to check. Section B holds tenant templates: a repair request, an escalation letter, a rent escrow notice, a lease addendum, a notice-defect audit, an eviction answer, and a deposit demand. Section C holds landlord templates: screening criteria, an FCRA adverse action notice, a maintenance log, a rent ledger, pay-or-quit and cure-or-quit notices, a proof of service, and a deposit itemization. Section D holds shared documents: a cash-for-keys agreement, a settlement stipulation with sealing language, and a payment plan. Section E collects the primary authorities.

Casey Scott McKayApril 8, 202415 min read

TechnologyInformation Technology

Cloud and SaaS Agreements: Service Levels, Data Rights, Security, and Exit

A software-as-a-service agreement is not a software license with a different delivery method. The customer never possesses the software, its data lives on the vendor's infrastructure, the vendor can change the product unilaterally, and switching costs are usually far higher than either side admits during negotiation. This article explains what actually matters in cloud contracts and where the leverage is. It covers the grant of access rights and the difference between a license and a subscription, service level agreements and why the service credit remedy is usually worth less than it appears, availability definitions and how exclusions swallow the commitment, and the escalation and termination rights that give an SLA teeth. It then turns to data: who owns customer data, what the vendor may do with it including the increasingly contested question of training machine learning models, the data processing addendum and subprocessor controls, and cross-border transfer obligations. Sections on security representations and audit rights, incident notification, business continuity, intellectual property and feedback clauses, liability allocation, suspension, and the exit provisions that determine whether you can ever leave follow. It closes with a negotiation playbook, a worked example, an FAQ, and related reading.

Casey Scott McKayApril 8, 202425 min read

LitigationSpeech and Media

Anti-SLAPP Statutes and Strategic Litigation Against Public Participation

An anti-SLAPP statute is an unusual piece of machinery: a procedural device that lets a defendant test the merits of a claim before discovery, shifts fees to the prevailing defendant as a matter of right, and in many states permits an immediate appeal from denial. It exists because a certain kind of lawsuit is filed to impose cost rather than to win, and ordinary procedure handles that badly. The statutes vary enormously — California's is expansive and heavily litigated, several states have adopted the Uniform Public Expression Protection Act, and a dozen states have nothing at all — which makes forum and choice of law unusually consequential. This article explains the two-step framework, the exemptions that swallow more than practitioners expect, the unresolved question of whether these statutes apply in federal court, and how to use one without triggering the fee award yourself.

Casey Scott McKayApril 6, 202426 min read

CorporateBusiness Formation

Business Formation and Entity Maintenance Toolkit

Choosing an entity takes an afternoon; living inside one takes years, and the failures that cost real money are almost all maintenance failures rather than formation ones. This toolkit covers both halves. It starts with the decision framework for entity type and state of formation, then walks the formation mechanics that create a functioning company rather than a filed one: governing documents that reflect the deal the founders actually made, equity issued with vesting and the tax elections that follow, and the accounts and registrations that make the entity real. The second half is the part nobody plans for — annual filings, foreign qualification as the business crosses state lines, the records that support limited liability, the buy-sell and deadlock provisions that decide what happens when founders disagree, and the wind-down sequence that protects owners from claims after the business ends.

Casey Scott McKayApril 5, 202415 min read

Intellectual Property and TechnologyIP and IT in Corporate Transactions

Employee Invention Assignment Agreements: Drafting for Enforceability Across Jurisdictions

Companies routinely assume they own whatever their employees invent—and routinely discover, at the worst possible moment, that they do not. This article explains how to draft invention assignment agreements that courts will actually enforce, following a fictional startup through the title problems that surface in financings and acquisitions. It covers the default rule that inventors own their inventions, the shop-right and hired-to-invent doctrines that fill part of the gap, the decisive difference between a present assignment and a mere agreement to assign that the Supreme Court applied in Stanford v. Roche, the FilmTec line of Federal Circuit cases that made "hereby assigns" magic words, the state carve-out statutes that limit what employers can claim, the consideration that existing employees must receive, holdover and prior-invention provisions, the gap between copyright's work-made-for-hire doctrine and patent law, and the chain-of-title defects that derail transactions and standing. The throughline: the cheapest moment to secure clear title is at hiring, and the most expensive is when a deal or a lawsuit depends on it.

Casey Scott McKayApril 3, 202451 min read

Intellectual PropertyTrademark

Selecting a Protectable Trademark Checklist: A Practical Checklist

A checklist for choosing a brand name that the law will actually protect, built around the distinctiveness spectrum that governs trademark strength. It guides you from confirming you need a trademark, through generating candidates, scoring each on the fanciful-to-generic scale, screening out statutory bars (surnames, geographic terms, deceptive and functional matter), pressure-testing strength and scope, and handing off to clearance and filing. Each phase includes WHY notes and trap warnings, plus a common-mistakes list and primary authority. It reflects that distinctiveness is decided at the naming whiteboard, not at the USPTO. Educational, not legal advice.

Casey Scott McKayApril 2, 20248 min read

Intellectual PropertyPatent

Responding to a Patent Office Action: A Practical Checklist

An office action is not a rejection of you—it is the opening move in a structured negotiation the patent system is built to give you the second, third, and fourth word in. This checklist teaches you to read an office action structurally (header, body, final vs. non-final, deadlines), to docket and protect your deadlines, and to choose among argument, amendment, declaration evidence, the examiner interview, and appeal. It covers the four substantive rejections—anticipation under § 102, obviousness under § 103, eligibility under § 101, and the § 112 family—plus restriction and rejoinder, Rule 1.130 declarations that knock out prior art, after-final practice in the post-AFCP-2.0 world, requests for continued examination, and the full PTAB appeal track, with the 2025 fee changes that reshaped post-final strategy. The aim is to turn rejections into granted patents whose claims are still worth owning.

Casey Scott McKayMarch 30, 202410 min read