Expert Analysis

• Perspectives

  Why Law Schools Should Require Justice Reform Curriculum

  

  Criminal defense attorney Donna Mulvihill Fehrmann argues that law schools have an obligation to address widespread racial and economic disparities in the U.S. legal system by mandating first-year coursework on criminal justice reform that educates on prosecutorial misconduct, wrongful convictions, defense 101 and more.

• Opinion

  Copyright Law's Employment Test Is Frighteningly Outdated

  

  In Horror Inc. v. Miller, the Second Circuit's recent analysis of whether the defendant was an employee or an independent contractor, and thus able to terminate his copyright, illustrates why copyright employment principles need to be updated in view of the post-COVID-19 work context, says Matthew Fagan at Kacvinsky Daisak.

• 2nd Circ. ERISA Ruling Offers Lessons On Proof Of Loss

  

  The Second Circuit’s recent decision in Sacerdote v. New York University, reviving several retirement plan fiduciary breach claims, illustrates why defendants must avoid terminology that conflates loss and damages, and why they should develop affirmative evidence to show plans were not harmed by alleged breaches, say Deanna Rice and Randall Edwards at O'Melveny & Myers.

• Tax-Exempt Orgs, Beware This 403(b) Plan Compliance Pitfall

  

  A recent Internal Revenue Service publication puts 403(b) retirement plan sponsors on notice about a contribution aggregation compliance failure often identified in audits of government and tax-exempt entities, but risk can be minimized by ensuring plan documents and communications address the issue directly, say Greg Needles and Michael Gorman at Morgan Lewis.

• Girardi Scandal Provides Important Ethics Lessons

  

  The litigation and media maelstrom following allegations that famed plaintiffs attorney Thomas Girardi and his law firm misappropriated clients' funds provides myriad ethics and professional responsibility lessons for practitioners, especially with regard to misconduct reporting and liability insurance, says Elizabeth Tuttle Newman at Frankfurt Kurnit.

• Series

  Embracing ESG: Jabil GC Talks Compliance Preparation

  

  Tried-and-true compliance lessons from recent decades can be applied to companies’ environmental, social and governance efforts, especially with regard to employee training and consistent application of policies — two factors that can create a foundation for ESG criteria to flourish, says Robert Katz at Jabil.

• 3 Ways CLOs Can Drive ESG Efforts

  

  Chief legal officers are specially trained to see the legal industry's flaws, and they can leverage that perspective to push their companies toward effective environmental, social and governance engagement, says Mark Chandler at Stanford Law School.

• Public Agency Risks Grow Under New Calif. Pension Law

  

  Most public agencies will likely face reimbursement demands from the California Public Employees' Retirement System under a new state law that shifts the costs of reporting errors from retirees to employers, so affected agencies should scrutinize their collective bargaining agreements and specialty pay practices for potential risks, says Steven Berliner at Liebert Cassidy.

• How Law Firms Can Rethink Offices In A Post-Pandemic World

  

  Based on their own firm's experiences, Kami Quinn and Adam Farra at Gilbert discuss strategies and unique legal industry considerations for law firms planning hybrid models of remote and in-office work in a post-COVID marketplace.

• A Primer On DOL Probes For ERISA Plan Service Providers

  

  As the U.S. Department of Labor shifts its enforcement resources from Employee Retirement Income Security Act plan sponsors to financial institutions that service such plans, nonfiduciary providers should know what to expect and how to respond to agency investigations, say attorneys at Groom Law Group.

• Opinion

  5th Circ. Opinion Is Right To Question ERISA Review Norms

  

  A concurrence in the Fifth Circuit’s recent J. P. v. Blue Cross and Blue Shield of Texas decision rightly criticizes the standard of review in Employee Retirement Income Security Act cases as misplaced, nearly impossible for claimants to meet, and at odds with the holistic assessment required by the U.S. Supreme Court, says Mark DeBofsky at DeBofsky Sherman.

• Series

  Embracing ESG: Baker Hughes CLO Talks Sustainability Team

  

  For businesses focused on addressing environmental, social and governance considerations, a legal team that can coordinate sustainability efforts across the company can help to manage risk and compliance issues, anticipate and prepare for change, and identify new opportunities, says Regina Jones at Baker Hughes.

• College Athlete Employee Status Would Raise Novel Issues

  

  A recent declaration that the National Labor Relations Board's office of general counsel now considers certain college athletes employees, if formally adopted by the NLRB, could bring new questions for colleges and athletes on workers' compensation, unemployment insurance, tax liability and more, says Mike Ingersoll at Womble Bond.

• What Mainstreaming Of Litigation Finance Means For Industry

  

  The rush of new capital and investors into the litigation funding space is expected to bring heightened competition on price and other key deal terms, but litigants will need to be more in tune with individual financiers' proclivities, says William Weisman at Therium Capital Management.

• What 9th Circ. Privilege Test Means For Dual-Purpose Advice

  

  While the Ninth Circuit's recent ruling in In re: Grand Jury confirms that courts should use the primary-purpose test to determine whether communications with both legal and business purposes are shielded by the attorney-client privilege, questions on the application of the test remain, says Scott Tenley at Michelman & Robinson.