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.

AdminSeptember 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.

AdminSeptember 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.

AdminSeptember 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.

AdminSeptember 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.

AdminSeptember 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.

AdminSeptember 5, 202613 min read