Expert Analysis

• FERC Order Affirms Increased Scrutiny Of Investor-Utility Ties

  

  A recent Federal Energy Regulatory Commission order confirming more aggressive scrutiny of investors' exercise of control over public utilities through representation on their boards or the boards of companies holding interests in them means that both investors and utilities face significantly heightened compliance obligations, say attorneys at Akin.

• Effectual Relief Questions Linger After Section 363 Ruling

  

  In the months since the U.S. Supreme Court's ruling in MOAC Mall Holdings, courts and practitioners must grapple with the issue of what effectual relief courts may grant upon an appeal of an unstayed sale order, says Monique Jewett-Brewster at Hopkins Carley.

• CFIUS Clampdown Will Deter Allied-Country Investment

  

  The Committee on Foreign Investment in the United States’ recent redefinition of transaction "completion date" is the latest in a series of steps taken in the name of U.S. security that are likely to deter investments from friendly countries and increase capital costs for U.S. startups, says Stephen Heifetz at Wilson Sonsini.

• Important Generative AI Considerations In M&A

  

  The recent surge of interest in generative artificial intelligence and its use of machine learning algorithms means there are novel concerns as well as inherent risks for those engaging in M&A activity, and acquirers should pay careful attention to a target’s scope of ownership and licensing rights, say attorneys at Davis Polk.

• Courts Can Overturn Deficient State Regulations, Too

  

  While suits challenging federal regulations have become commonplace, such cases against state agencies are virtually nonexistent, but many states have provisions that allow litigants to bring suit for regulations with inadequate cost-benefit analyses, says Reeve Bull at the Virginia Office of Regulatory Management.

• 'Entire Fairness' Takeaways From Tesla-SolarCity Ruling

  

  In its recent decision affirming dismissal of stockholder claims against Elon Musk in connection with Tesla's $2.6 billion acquisition of SolarCity, the Delaware Supreme Court indicated how an entire fairness analysis is best presented, say attorneys at Fried Frank.

• Tales From The Trenches Of Remote Depositions

  

  As practitioners continue to conduct depositions remotely in the post-pandemic world, these virtual environments are rife with opportunities for improper behavior such as witness coaching, scripted testimony and a general lack of civility — but there are methods to prevent and combat these behaviors, say Jennifer Gibbs and Bennett Moss at Zelle.

• A Practical Solution To Life Sciences Joint Venture Disputes

  

  In light of recent developments that threaten to increase friction between life sciences companies, industry participants should consider implementing dispute advisory boards as a method of resolving common joint venture hiccups without requiring litigation or mediation, says Scott Bass at Sidley.

• What's New In The DOJ-FTC Proposed Merger Guidelines

  

  While this week's merger guidelines proposal from the Federal Trade Commission and U.S. Department of Justice initially appears to reflect well-established principles of antitrust law, a closer examination reveals a stark departure from the last 40 years of antitrust enforcement, say attorneys at Skadden.

• Vice Bankruptcy Ruling Shows Contract Assignment Issues

  

  A New York bankruptcy court’s recent ruling in Vice Media’s Chapter 11 case is likely to have implications for other cases involving the assignment of contracts by corporate entities, and may signal that Showtime will still face an uphill battle in trying to prove that its contract constituted personal services, says Debra Dandeneau at Baker McKenzie.

• Ways To Balance ESG Initiatives And Antitrust Risks

  

  Since ESG policies often concern systemic issues that require collective action for meaningful results, there are potential antitrust issues that require safeguards to help mitigate risk, say attorneys at Faegre Drinker.

• OpenSea Verdict Backs DOJ Digital Asset Insider Trading View

  

  The recent conviction of a former OpenSea manager in New York federal court confirms, for the first time, that the U.S. Department of Justice can prosecute insider trading activity involving digital assets under the traditional fraud statutes, irrespective of how an asset is legally classified, say attorneys at BakerHostetler.

• Level Up Lawyers' Business Development With Gamification

  

  With employee engagement at a 10-year low in the U.S., there are several gamification techniques marketing and business development teams at law firms can use to make generating new clients and matters more appealing to lawyers, says Heather McCullough at Society 54.

• Mallory Ruling Leaves Personal Jurisdiction Deeply Unsettled

  

  In Mallory v. Norfolk Southern Railway, a closely divided U.S. Supreme Court recently rolled back key aspects of its 2017 opinion in Daimler AG v. Bauman that limited personal jurisdiction, leaving as many questions for businesses as it answers, say John Cerreta and James Rotondo at Day Pitney.

• What Constitutes A Sale Of 'All' Company Assets In Del.

  

  The recent ruling in Altieri v. Alexy by the Delaware Chancery Court is a useful reminder of the facts-intensive and nuanced nature of the judicial analysis as to what constitutes a sale of all or substantially all of a company's assets, and provides helpful guidance as to the factors the court views as most critical in making the determination, say attorneys at Fried Frank.