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.

LitigationClass Actions

Winning or Defeating Class Certification: A Practical Guide

Certification is won and lost on decisions made in the first months of a case, long before the motion is briefed. This guide sets out the sequence for both sides: framing the theory and the class definition against the evidence that will actually exist, planning certification discovery around the data the model needs, and selecting and managing the expert who will carry the case. It works through the plaintiff's construction of a common-proof showing and the defendant's attack on it — member-level results, benchmark contamination, aggregation, false positives, and the uninjured-member argument — together with the Rule 702 motion and how to time it. Later sections cover the certification hearing itself, including live and concurrent expert testimony, the findings the record needs for appeal, and the Rule 23(f) petition. It closes with settlement classes, class definition narrowing, and the choices that decide the case.

Casey Scott McKaySeptember 5, 202628 min read

LitigationArbitration

Who Decides Arbitrability: Delegation Clauses, Gateway Questions, and the Severability Rule

Before a court can decide whether a dispute belongs in arbitration, it has to decide who decides that question. This article explains the layered doctrine that answers it: the severability rule of Prima Paint and Buckeye, the clear-and-unmistakable standard of First Options, the procedural-versus-substantive divide of Howsam, and the delegation clause that Rent-A-Center made independently enforceable. It covers the incorporation-of-rules question that continues to divide courts, what Henry Schein settled and what it did not, and how Coinbase v. Suski handles conflicting agreements. It closes with the drafting choices that determine which forum answers the first question.

Casey Scott McKaySeptember 5, 202628 min read

FinanceLeveraged Finance

Unitranche Toolkit: AAL Provisions, Waterfall Mechanics, and Voting Constructs

This toolkit supplies the operative provisions of an agreement among lenders in drafting-ready form, each annotated with the failure it prevents. It opens with a lender term sheet to be agreed before the credit agreement is final, then provides skim and payment application mechanics, a trigger event definition with the drafting traps identified, and a full waterfall. It supplies a voting construct with a controlling party, a standstill, and a sacred rights schedule; a buyout option with the four provisions that make it operative; and turnover and bankruptcy provisions layered so that the reliable remedy does not depend on the least reliable clause. Transfer and joinder mechanics, an agent joinder, a buyout exercise notice, and a definitional reconciliation table complete the set.

Casey Scott McKaySeptember 5, 202617 min read

FinanceLeveraged Finance

Unitranche Facilities and Agreements Among Lenders: One Loan, Two Tranches, and a Private Waterfall

A unitranche facility looks to the borrower like one loan at one rate, and is in fact two or more tranches with different economics divided by a contract the borrower usually never sees. This article explains what the agreement among lenders actually does: how the interest skim converts a blended rate into first-out and last-out returns, how the payment waterfall changes on default, who controls enforcement, and how the buyout option lets the last-out lender take the position out. It addresses the question that has troubled the structure since its invention — whether the agreement binds in a bankruptcy case where the borrower is not a party — and what documentation practice has developed in response. It closes with what a borrower should care about in a document it does not sign, and how unitranche compares to a conventional first lien and second lien structure.

Casey Scott McKaySeptember 5, 202628 min read

FinanceLeveraged Finance

Unitranche and AAL Review Checklist

A unitranche is two or three documents that must agree with each other, and the defects that matter are consistency defects that surface only in a workout. This checklist reviews the whole structure. It covers the tranche and skim allocation including the items routinely omitted, the trigger event and waterfall drafting, the voting construct with sacred rights, and the buyout option with the four provisions that make it operative. Later sections cover the turnover and bankruptcy provisions that carry the enforceability risk, the transfer and joinder mechanics, the agent's position, and the super-senior revolver intercreditor. It closes with a definitional reconciliation table to run across every document before signing, and an administration checklist for the life of the facility.

Casey Scott McKaySeptember 5, 20268 min read

LitigationTrial Practice

Trial Presentation Toolkit: Exhibit Lists, Foundation Scripts, and Demonstrative Protocols

This toolkit supplies the forms and scripts that carry an exhibit programme from twelve weeks out through the verdict. It opens with an exhibit database schema and a list template, followed by ready-to-adapt certifications under Rules 902(11), 902(13), and 902(14) with the notice of intent that must accompany them. A stipulation form and agenda make the eight-week session productive, and a redaction protocol with a verification sign-off addresses the error that causes mistrials. Foundation scripts cover business records, photographs, video under the silent witness theory, audio, electronic communications, database output, and Rule 1006 summaries. Later tools include a demonstrative disclosure and design standard, a motion in limine outline, an offer of proof script, a daily exhibit log, a deposition designation chart, a courtroom technology checklist, and a jury room set verification form.

Casey Scott McKaySeptember 5, 202613 min read

LitigationTrial Practice

Trial Exhibits and Demonstratives: Getting Evidence in Front of the Jury and Keeping It There

An exhibit that is not admitted is not evidence, and the difference is made by foundation work done weeks before trial. This article explains the two doorways every exhibit must pass — authentication under Rule 901 or 902, and a hearsay exception where the exhibit is offered for its truth — and the practical foundations for the documents that actually appear at trial: business records, electronic communications, social media, database output, photographs, video, and recordings. It sets out the distinction between a summary admitted under Rule 1006 as substantive evidence and a demonstrative used only to illustrate testimony, why that distinction determines whether the item goes to the jury room, and how courts handle the boundary. Separate sections address Rule 403 and the Old Chief problem of evidentiary richness, the rule of completeness, objections and offers of proof, and the pretrial order process that decides most of these questions before the jury is empanelled.

Casey Scott McKaySeptember 5, 202627 min read

LitigationTrial Practice

Trial Exhibit Preparation Checklist

This checklist runs the exhibit workstream on a twelve-week schedule and through trial. It begins with deriving the list from the verdict form rather than from the document production, and with the database fields that determine whether an exhibit has a route into evidence. Certification, stipulation, and redaction sections cover the three tasks that eliminate the most trial time and prevent the most damaging errors. Later sections cover motions in limine, foundation scripts by exhibit category, demonstrative design rules and the Rule 1006 boundary, deposition designations, courtroom technology, and the daily exhibit log. Objection deadlines are set out with the waiver consequences that attach to each, and the closing sections cover the jury room set verification, the appellate record, and the post-verdict preservation steps.

Casey Scott McKaySeptember 5, 20267 min read

LitigationInternational Arbitration

Treaty Arbitration Toolkit: Notices of Dispute, Jurisdictional Objections, and Enforcement Strategy

This toolkit provides the operative documents of an investor-state arbitration in drafting-ready form, annotated with the consequence each carries. It supplies a notice of dispute drafted to preserve jurisdiction and to make settlement possible, an arbitrator selection framework, a jurisdictional objection outline for a respondent state, and a bifurcation application. It provides a document request schedule in the format tribunals expect, quantum expert instructions, and an asset mapping template for enforcement. On the preventive side it supplies a stabilization clause, separate waivers of immunity from jurisdiction and from execution, and an award-on-agreed-terms provision that makes a settlement enforceable rather than merely contractual.

Casey Scott McKaySeptember 5, 202617 min read

Intellectual PropertyTrademarks

Trademark Licensing and Quality Control: Naked Licensing, Abandonment, and Brand Integrity

A trademark is not property in the ordinary sense; it is a promise about source and consistency, and a license that abandons control abandons the promise. This article explains why trademark licensing carries a quality control obligation that patent and copyright licensing do not, what courts actually require to satisfy it, and how a mark can be forfeited by a licensor who never intended to give anything up. It works through the leading naked licensing decisions, the three routes to establishing adequate control, and the evidence that decides the question years later. It then covers the drafting choices that matter — scope, standards, approvals, audits, sublicensing, termination, and sell-off — along with assignment in gross, licensee estoppel, the bankruptcy consequences after Mission Product Holdings, and the franchise law trap that catches ordinary trademark licenses. A running example follows one brand through a good license and a bad one.

Casey Scott McKaySeptember 5, 202629 min read

Intellectual PropertyTrademarks

Trademark License and Quality Control Checklist: A Practical Checklist

This checklist runs a trademark license from the pre-deal registration audit through termination, with the quality control provisions treated as the load-bearing part they are. It opens with the ownership and registration work that must precede any license, then licensee diligence, deal economics, and the scope terms that prevent the most common disputes. The central sections cover the quality control architecture, the approval process, the audit and reporting regime, and the control file that proves control years later. Separate sections handle the franchise law screen every royalty-bearing license needs, international adaptations, termination and exit mechanics, and an annual program review. A closing section gives the licensee's own checklist and a short diagnostic for a program you have inherited.

Casey Scott McKaySeptember 5, 202611 min read

CorporateCommercial Transactions

Third-Party Legal Opinions in Transactions: What They Cover, What They Exclude, and Who Relies

A closing opinion is a lawyer's professional judgment on stated legal questions, addressed to someone who is not the lawyer's client, delivered as a condition to a transaction closing. This article explains what that document actually says and what it deliberately does not. It works through the standard opinions — entity status, power and authority, due authorization, enforceability, no conflicts, no consents, and security interest creation and perfection — and through the exceptions and qualifications that do most of the work, including the bankruptcy and equitable principles exceptions that every remedies opinion carries. It covers customary practice as the interpretive frame, who may rely and on what terms, the liability landscape for opinion givers under securities and common law, and how opinions get negotiated in practice.

Casey Scott McKaySeptember 5, 202628 min read