Expert Analysis

• 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.

• Lifting The Veil On The Supreme Court's Shadow Docket

  

  Following headline-making U.S. Supreme Court emergency orders on Texas’ new abortion law, COVID-19 restrictions and more, Vetan Kapoor, counsel to Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, examines the court's so-called shadow docket and its decision-making procedures, including questions around transparency, timing and precedential effect.

• Unclear Cyber Guidance May Lead To ERISA Case Spike

  

  As cyberattacks on retirement plans increase, Employee Retirement Income Security Act lawsuits could also spike, especially because case law and guidance from the U.S. Department of Labor lack clarity on the causation standard for ERISA claims involving lost assets due to online security breaches, says Joshua Gmerek at Hodgson Russ.

• Series

  Embracing ESG: United Natural Foods GC Talks Bottom Line

  

  In prioritizing environmental, social and governance initiatives as strategic value drivers, corporate general counsel can leverage meaningful ESG progress to benefit both the business's bottom line and the wider world, says Jill Sutton at United Natural Foods.

• 3 Attorney Ethics Considerations For Litigation Funding

  

  The growth of the litigation finance industry has generated questions on the obligations of counsel when their clients are seeking outside capital to fund litigation, which litigators must understand when providing information to a third-party funder and discussing legal strategy with a client, says Matthew Oxman at LexShares.

• Benefits Ruling Raises Jury Trial Question For ERISA Cases

  

  An Ohio federal court's recent ruling in Phillips v. Sun Life Assurance has reopened the debate over the utility of jury trials in Employee Retirement Income Security Act benefit denial cases, highlighting how the law’s silence on the issue leads courts to make up rules that lack statutory support, says Mark DeBofsky at DeBofsky Sherman.

• How ABA Opinion Shifts Alternative Biz Structure Landscape

  

  A recent American Bar Association opinion approving lawyers' passive investment in nonlawyer-owned firms eliminates a hurdle for law firms wishing to scale their practice through alternative business structures, but aspiring investors should follow a few best practices, say Hilary Gerzhoy and Deepika Ravi at Harris Wiltshire.

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  Embracing ESG: HPE Counsel Talk Effective Board Oversight

  

  Governance teams can more effectively shape board oversight of environmental, social and governance issues by ensuring organizationwide agreement on the most relevant issues, building a materiality framework that reflects stakeholder input, and monitoring the integration of ESG into operations, say Rishi Varma and Derek Windham at Hewlett Packard Enterprise.

• Opinion

  Justice Gap Demands Look At New Legal Service Models

  

  Current restrictions on how lawyers structure their businesses stand in the way of meaningful access to justice for many Americans, so states should follow the lead of Utah and Florida and test out innovative law firm business models through regulatory sandboxes, says Zachariah DeMeola at the Institute for the Advancement of the American Legal System.

• What Forced Arbitration Ruling Means For Calif. Employers

  

  As a result of the Ninth Circuit's surprising, peculiar decision this week in Chamber of Commerce v. Bonta, employers in California once again face the very real prospect of incurring criminal and civil penalties for simply requesting that employees and applicants agree to arbitrate future disputes, says Anthony Oncidi at Proskauer.

• How ERISA Fiduciaries Can Use ESG: Part 2

  Excerpt from Practical Guidance

  

  While case law suggests fiduciaries face risk in using environmental, social and governance factors as the primary criterion in retirement plan investing, it also provides a road map for using ESG in a manner compliant with Employee Retirement Income Security Act duties, says Elizabeth Goldberg at Morgan Lewis.

• How ERISA Fiduciaries Can Use ESG: Part 1

  Excerpt from Practical Guidance

  

  The U.S. Department of Labor's back-and-forth position on the Employee Retirement Income Security Act's treatment of environmental, social and governance factors in investing has created significant confusion, but case law may provide the framework needed to use ESG in retirement plan investing, says Elizabeth Goldberg at Morgan Lewis.

• Imposing Insurance Surcharges On Unvaccinated Workers

  

  Employers that are not covered by President Joe Biden’s new COVID-19 action plan or that want to further encourage vaccination may consider imposing a health insurance premium surcharge on unvaccinated workers, but compliance with myriad federal, state and local laws must be addressed before raising rates, say attorneys at Reed Smith.

• Employer Considerations Ahead Of OSHA's Vaccine Rule

  

  Paula Ketcham at Schiff Hardin highlights what employers should be on the lookout for when the Occupational Safety and Health Administration announces its emergency temporary standard requiring large employers to mandate COVID-19 vaccines or weekly testing, and offers insights on preparation, existing state laws and more.