Expert Analysis

• DOJ's Safe Harbor Policy May Quietly Favor M&A Enforcement

  

  In a change that has received little attention, the U.S. Justice Department's recently codified safe harbor policy essentially reads the Antitrust Division's criminal enforcement out of the policy entirely, and now appears to favor merger enforcement in antitrust, rather than criminal enforcement, as originally intended, say Daniel Oakes and James Attridge at Axinn.

• Takeaways From The 2023 DOJ Fraud Section Report

  

  Attorneys at Wiley discuss notable trends from the U.S. Department of Justice's recently reported Fraud Section activity last year and highlight areas of enforcement to watch for in the future, including healthcare fraud and Foreign Corrupt Practices Act violations.

• Draft Pay Equity Rule May Pose Contractor Compliance Snags

  

  The Federal Acquisition Regulatory Council's recently proposed rule that would prohibit government contractors from requesting certain job applicants' salary history seems simple on the surface, but achieving compliance will be a nuanced affair for many contractors who must also adhere to state and local pay transparency laws, say attorneys at Hogan Lovells.

• 7 Takeaways From CFPB Circular On Digital Comparison Tools

  

  The Consumer Financial Protection Bureau's new guidance regarding digital comparison-shopping platforms for financial services products and services offers fresh insights into the bureau's interpretation of the abusiveness standard and expands on principles underlying its previous guidance on the topic, say attorneys at Husch Blackwell.

• How Policymakers Can Preserve The Promise Of Global Trade

  

  Global trade faces increasing challenges but could experience a resurgence if long-held approaches adjust and the U.S. accounts for factors that undermine free trade's continuing viability, such as regional trading blocs and the increasing speed of technological advancement, says David Jividen at White & Case.

• 10 Areas To Watch In Aerospace And Defense Contracting Law

  

  The near future holds a number of key areas to watch in aerospace and defense contracting law, ranging from dramatic developments in the space industry to recent National Defense Authorization Act updates, which are focused on U.S. leadership in emerging technologies, say Joseph Berger and Chip Purcell at Thompson Hine.

• Opinion

  Proposed MDL Management Rule Needs Refining

  

  Proponents of the recently proposed Federal Rule of Civil Procedure 16.1 believe it may enhance efficiency in multidistrict litigation proceedings if adopted, but there are serious concerns that it could actually hinder plaintiffs' access to justice through the courts — and there are fundamental flaws that deserve our attention, says Ashleigh Raso at Nigh Goldenberg.

• How New SEC Rule May Turn DeFi Participants Into 'Dealers'

  

  The U.S. Securities and Exchange Commission recently announced a new rule to amend its definition of a securities "dealer," but the change could have concerning implications for decentralized finance and blockchain, as the SEC has suggested it may subject DeFi participants to registration requirements and other regulations, say attorneys at DLA Piper.

• Opinion

  Litigation Funding Needs Regulating To Meet Ethics Standards

  

  Third-party litigation funding can provide litigants with access to the legal system, but, as recent cases show, the funding agreements carry the potential for exploitation and may conflict with core aspects of the attorney-client relationship, making the need for a balanced regulation self-evident, says Deborah Winokur at Cozen O'Connor.

• Opinion

  Judicial Independence Is Imperative This Election Year

  

  As the next election nears, the judges involved in the upcoming trials against former President Donald Trump increasingly face political pressures and threats of violence — revealing the urgent need to safeguard judicial independence and uphold the rule of law, says Benes Aldana at the National Judicial College.

• How Harsher Penalties For AI Crimes May Work In Practice

  

  With recent pronouncements from the U.S. Department of Justice that prosecutors may seek sentencing enhancements for crimes committed using artificial intelligence, defense counsel should understand how the sentencing guidelines and statutory factors will come into play, says Jennie VonCannon at Crowell & Moring.

• Opinion

  NIST March-In Framework Is As Problematic As 2021 Proposal

  

  While the National Institute of Standards and Technology's proposed march-in framework on when the government can seize patents has been regarded as a radical departure that will support lowering prescription drug costs, the language at the heart of it is identical to a failed 2021 notice of proposed rulemaking, says attorney Kelly Morron.

• AI In Performance Management: Mitigating Employer Risk

  

  Companies are increasingly turning to artificial intelligence tools in performance management, exposing organizations to significant risks, which they can manage through employee training, bias assessments, and comprehensive policies and procedures related to the new technology, say Gregory Brown and Cindy Huang at Jackson Lewis.

• Legal Issues When Training AI On Previously Collected Data

  

  Following the Federal Trade Commission's recent guidance about the use of customer data to train artificial intelligence models, companies should carefully think through their terms of service and privacy policies and be cautious when changing them to permit new uses of previously collected data, says James Gatto at Sheppard Mullin.

• Protested CFPB Supervisory Order Reveals Process, Priorities

  

  The Consumer Financial Protection Bureau’s order announcing its first use of special oversight power to place installment lender World Acceptance Corp. under supervision despite resistance from the company provides valuable insight into which products and practices may draw bureau scrutiny, and illuminates important nuances of the risk assessment procedures, say Josh Kotin and Michelle Rogers at Cooley.