Expert Analysis

• CFPB And FTC Take Their Place As Powerful Crypto Cops

  

  While they're not the primary federal regulators of digital asset activity, the Federal Trade Commission and Consumer Financial Protection Bureau have begun expanding oversight in the area, so organizations should anticipate increased scrutiny from the pair over certain aspects of the crypto marketplace, say attorneys at Greenberg Traurig.

• A Bankruptcy Doctrine May Soon Be Before The High Court

  

  The Fifth Circuit's recent use of the Barton doctrine, where the court recommitted to dismissing claims against court-appointed fiduciaries when plaintiffs fail to obtain permission before bringing suit, stands in contrast to Eleventh Circuit limitations, meaning the issue may be ripe for U.S. Supreme Court review, say Maxwell Weiss and Daniel Lowenthal at Patterson Belknap.

• Establishing A Record Of Good Faith In Mediation

  

  Viacom v. U.S. Specialty Insurance, and other recent cases, highlight the developing criteria for determining good faith participation in mediation, as well as several practical tips to establish such a record, says Richard Mason at MasonADR.

• After SVB Collapse, A Lesson In Patents As Debt Collateral

  

  The cautionary tale of Silicon Valley Bank's recent failure highlights the importance of the proper securitization of intellectual property pledged as collateral, with five critical steps for perfecting security interests and protecting lenders' and creditors' rights, says Gregory Campanella at Ocean Tomo.

• SEC's Proposed Custody Rule Changes And What They Mean

  

  The U.S. Securities and Exchange Commission's proposal to reclassify the Custody Rule as the Safeguarding Rule represents a potentially fundamental shift in how investment advisers select and transact in certain types of client assets, and there are key practical issues advisers and other market participants can consider ahead of its adoption, say attorneys at Katten.

• ABA Opinion Should Help Clarify Which Ethics Rules Apply

  

  A recent American Bar Association opinion provides key guidance on interpreting ABA Model Rule 8.5's notoriously complex choice-of-law analysis — and should help lawyers authorized to practice in multiple jurisdictions determine which jurisdiction's ethics rules govern their conduct, say attorneys at HWG.

• How Crypto-Friendly Bank Failures Will Change Tech Industry

  

  The recent failures of Silicon Valley Bank, Signature Bank and Silvergate Capital are likely to result in significant shifts in how the global tech industry and its financial partners address legal, compliance, regulatory and business risks, says Erin Bryan at Dorsey & Whitney.

• 4 Ways To Reboot Your Firm's Stalled Diversity Program

  

  Law firms that have failed to see real progress despite years of diversity initiatives can move forward by committing to tackle four often-taboo obstacles that hinder diversity, equity and inclusion efforts, says Steph Maher at Jaffe.

• Opinion

  'Day-In-Court' Ideal Is Distracting From Victim Recovery

  

  As the number of high-profile, mass tort claims rises, preserving a few victims' right to a day in court should not permeate discussions — the overriding objective should be securing a collective of meritorious claimants the largest recovery possible on the shortest timeline, often through bankruptcy, says Samir Parikh at Lewis & Clark Law School.

• Top Questions, And Lessons, After Banking's Wild Weekend

  

  While regulators alleviated some immediate concerns related to Silicon Valley Bank and Signature Bank, even companies with minimal exposure to the failed institutions should monitor unfolding policy changes, cash management issues and increasing scrutiny on risk disclosures for public companies, say attorneys at Morgan Lewis.

• DOJ's Google Sanctions Motion Shows Risks Of Auto-Deletion

  

  The U.S. Department of Justice recently hit Google with a sanctions motion over its alleged failure to preserve relevant instant-messaging communications, a predicament that should be a wake-up call for counsel concerning the danger associated with automatic-deletion features and how it's been handled by the courts, say Oscar Shine and Emma Ashe at Selendy Gay.

• How Companies Can Use Gov't Funding Amid Bankruptcy

  

  As the risk of economic dislocation continues, a look back at four pandemic-era Chapter 11 cases — including their dismissal and eventual reinstatement — highlights a strategy businesses may use where government conditions financial assistance on an applicant not being in bankruptcy, say Matthew McGuire and Howard Robertson at Landis Rath.

• What To Expect From A Litigation Finance Industry Recession

  

  There's little data on how litigation finance would fare in a recession, but a look at stakeholders' incentives suggests corporate demand for litigation finance would increase in a recessionary environment, while the number of funders could shrink, says Matthew Oxman at LexShares.

• A Look At The Feds' Extraordinary Reaction To SVB Collapse

  

  With the receiverships of two banks in almost as many days, the emerging pattern of regulatory response holds the banking sector as a whole responsible for losses at individual institutions, a scenario that may not end with special assessments to cover Silicon Valley Bank and Signature Bank, say attorneys at WilmerHale.

• Key Considerations For Taxpayers Deducting Crypto Losses

  

  While a recent Internal Revenue Service memorandum is helpful in providing insight into how the agency is considering guidance related to cryptocurrency, questions remain with respect to whether a taxpayer can claim a tax deduction for cryptocurrency losses, say attorneys at McDermott.