Expert Analysis

• 9th Circ.'s Silence Prolongs Uncertainty On Cemex Framework

  

  By affirming a bargaining order in Cemex Construction Materials v. National Labor Relations Board without opining on the NLRB’s 2023 expansion of its authority to issue such orders, the Ninth Circuit avoided direct conflict with the Sixth Circuit’s rejection of the same framework, prolonging uncertainty for employers facing union elections, say attorneys at Dinsmore & Shohl.

• Arguments Show Justices Vacillating On Geofence Warrants

  

  Questions and statements by the justices during recent oral arguments in Chatrie v. U.S., probing the Fourth Amendment limits of geofence warrants, revealed a Supreme Court that is skeptical of the government’s most sweeping claims, uncomfortable with the petitioner’s broadest theories and searching for a narrow off-ramp, say attorneys at Rogers Joseph.

• Surveying The CFTC Campaign To Control Prediction Markets

  

  The U.S. Commodity Futures Trading Commission is simultaneously asserting exclusive jurisdiction over prediction markets and signaling aggressive enforcement within them, a combination that will reshape the regulatory landscape for event contract platforms — pending the outcome of several court cases throughout the country and a likely circuit split, say attorneys at Paul Weiss.

• Series

  Speed Jigsaw Puzzling Makes Me A Better Lawyer

  

  My passion for speed puzzling — I can complete a 500-piece jigsaw puzzle in under 50 minutes — has sharpened my legal skills in more ways than one, with both disciplines requiring patience, precision and the ability to keep the bigger picture in mind while working through the details, says Tazia Statucki at Proskauer.

• Documenting Business Purpose After IRS' 10th Circ. Win

  

  Following the Tenth Circuit’s recent Liberty Global v. U.S. decision, which held the economic substance doctrine does not require a threshold relevancy determination, taxpayers can prepare for potential audits by maintaining contemporaneous documentation and taking other steps that demonstrate the business purpose of transactions, say attorneys at Crowell & Moring.

• Why White Collar Juries Resist 'Honest Mistake' Defenses

  

  Cases like the bribery conviction of a Cincinnati City Council member recently vacated by the U.S. Supreme Court show juries often reject “I made an honest mistake” as a white collar defense, but attorneys who understand why jurors convict defendants who made reasonable but flawed decisions can strategize around this, says Jonathan Porter at Husch Blackwell.

• High Court's Cox Ruling Leaves ISP Copyright Rules Intact

  

  Though some commentators predicted a cataclysmic impact from the U.S. Supreme Court's recent decision in Cox v. Sony, in actuality the decision correctly maintains the status quo for internet providers' copyright infringement liability, says Courtney Sarnow at CM Law.

• Banks Face Cloudy Rate Horizons As Opt-Outs Spread

  

  Banks and fintechs are grappling with a fragmented, fast-changing consumer lending landscape as more states consider opting out of preemption under the Depository Institutions and Monetary Control Act, which may ultimately lead to a decrease in interstate lending and access to credit, says Marc Franson at Chapman and Cutler.

• A Core Weakness In The Challenge To Birthright Citizenship

  

  The government’s recent oral arguments against birthright citizenship in Trump v. Barbara would have the Supreme Court use modern immigration classifications as markers for a constitutional boundary that is not expressed in the Fourteenth Amendment, making the theory easier to administer but weaker as a matter of text and history, says attorney Tara Kennedy.

• 1st Circ. Ruling Offers Post-Muldrow Tips For Handling PIPs

  

  The First Circuit's recent ruling in Walsh v. HNTB, one of the first circuit-level applications of Muldrow's lowered adverse employment action threshold, indicates that performance improvement plans can remain on solid footing if they don't affect the terms of employment, says Sasha Thaler at Constangy.

• Building Codes Ruling May Inform AI Copyright Arguments

  

  The Third Circuit's recent decision in ASTM v. UpCodes, finding that republication of copyrighted building codes incorporated into binding law likely constitutes fair use, may help shape intellectual property strategy for standards organizations, rights holders and potentially even AI stakeholders, says Mitesh Patel at Reed Smith.

• Enviro Ruling And A New Law Signal Shift In La. Legacy Cases

  

  Together, a Louisiana state court decision in WMH Farms v. Apache Corp. and an incoming statutory regime signal a sea change for legacy litigation in Louisiana, as courts make it harder to establish proof of contamination, and lawmakers narrow available remedies once contamination is proven, says Philip Wood at Jones Walker.

• 2 AI Snafus Show Why Attys Can't Outsource Judgment

  

  The recent incident involving Sullivan & Cromwell where citations in a filed motion were fabricated by artificial intelligence, as well as a punitive ruling from the Sixth Circuit in U.S. v. Farris, demonstrate that the obligation to supervise AI has belonged and always will belong to lawyers, says John Powell at the Kentucky School Boards Association.

• Assessing The 9th Circ.'s Recent Stock Drop Dismissal Trend

  

  The recent decision in Nova Scotia Health Employees' Pension Plan v. Comerica is an important circuit-level addition to the growing trend of Ninth Circuit securities class action dismissals on loss causation grounds, which have used a contextual analysis premised on stock drops that are modest, typical and short-lived, say attorneys at Paul Weiss.

• Calif. Case Raises Questions For Medical Practice Investors

  

  The California attorney general's amicus brief in Art Center v. WCE and the California Medical Association's response highlight how the California appeals court's ruling could significantly affect the structure and enforceability of succession arrangements in medical practice ownership, say attorneys at Ropes & Gray.